Government’s misleading notice of preference-eligible rights and withholding of information concerning plain tiffs right to appeal adverse action entitles plaintiff to adjudication on the merits
How later courts described this case
- Government’s misleading notice of preference-eligible rights and withholding of information concerning plain tiffs right to appeal adverse action entitles plaintiff to adjudication on the merits
- Government’s misleading notice of preference-eligible rights and withholding of information concerning plain *1254 tiffs right to appeal adverse action entitles plaintiff to adjudication on the merits
- remand to the Civil Service Commission to consider merits of claim is “most expeditious and appropriate”
- remand to the appeals board is "most expeditious and appropriate"
Written by the judges who cited it.
The opinion
Davis, Judge,
dissenting:
The case does not, in my view, fall within the class in which the employee’s failure to file a timely appeal must be excused *206 because the employing agency misinformed him, affirmatively or by silence, as to his appeal or procedural rights. This plaintiff was expressly told that, if he believed the reduction-in-force regulations to have been applied incorrectly in his case, “you can appeal this action to the Civil Service Commission.” He did not exercise this right until more than a year later. The only justification offered for the extended delay is that it took that long for him to realize that his agency had not undergone a “liquidation” but a “reorganization.” Another employee (Nicholson) suspected this long before plaintiff, and there is no showing, or reason to believe, that there was anything in the objective facts — aside from what the agency wrote in the notices to plaintiff — that prevented plaintiff from earlier discovering that he had a putative claim which should be pursued. In this situation, I cannot say that the Commission acted arbitrarily, or abused its discretion, when it held that the belated appeal was untimely and that plaintiff was not prevented by circumstances beyond his control from filing a proper appeal.
This conclusion is not affected, for me, by the agency’s indication in the notifications that the adverse action resulted from a liquidation. We can assume now that that was incorrect. But an employee served with notice of an adverse action need not and should not adopt his employer’s characterization of the action, or the employer’s reasons for it. An appeal is provided precisely so that the employee can challenge and test the employer’s statements, showing them (if he can) to be wrong. Each year, in scores of personnel cases, employees reject management’s observations (and determinations) by carrying through on their right of appeal — and they prevail in substantial numbers. It has never been suggested that the timeliness of the appeal depends on its outcome, or that, in those instances in which the employees win, the appeals are necessarily timely, no matter how late filed, because the appellate determination shows in itself that the agency’s notification of its position was necessarily incorrect and, accordingly, a misrepresentation.
I know of no good reason why plaintiff cannot or should not be held to this traditional standard. He was specifically told he could appeal “if you believe the reduction-in-force regu *207 lations have not been applied correctly in your case,” and with that direct invitation he was negligent to acquiesce supinely in the agency’s views. Where, as here, the employee is clearly informed of his appeal rights, he has no right to accept the employer’s statements uncritically, or to wait until he finds out that some other employee has disputed and disproved them. Cf. McDougall v. United States, 138 Ct. Cl. 90 , 149 F. Supp. 651 (1957). I would therefore grant the Government’s motion for summary judgment and dismiss the petition. 1
I agree with the court, however, that If the appeal Is deemed timely the proper course Is to remand to the Civil Service Commission for consideration of the merits of the reductlon-ln-force.