Petition for Writ of Certiorari — Edwards v. United States Office of Personnel Management

Supreme Court, U.S.

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IN THE

Siupreme Court of the United States

OCTOBER TERM, 1986

DANIEL L. EDWARDS, JR.,

Petitioner,

Ve

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

- Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

IRVING KATOR

JOSEPH B. SCOTT

JAMES H. HELLER

MICHAEL J. KATOR

Counsel of Record

KATOR, SCOTT & HELLER, CHTD.

1029 Vermont Avenue, N.W.

Ninth Floor

Washington, D.C. 20005

(202) 393-3800

Attorneys For Petitioner

MARCH, 1987

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

AERERRIAS OEP

De eee ec ERE

QUESTIONS PRESENTED

Whether the Civil Service Reform Act of 1978 vested

jurisdiction in the United States Court of Appeals for

the Federal Circuit to adjudicate cases which were pend-

ing before the enactment of that legislation?

Whether a court, which lacks subject matter jurisdic-

tion over an appeal, may nonetheless dismiss that appeal

on the merits on a basis never raised by the parties at

any stage of the proceeding?

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner in this suit is Daniel L.. Edwards, Jr., of

Dayton, Ohio. The Respondent is the United States Office

of Personnel Management.

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING ................00..0......... ii

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STATUTORY AND REGULATORY PROVISIONS

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ERS A Te ee 3

REASONS FOR GRANTING THE PETITION ...... 6

ETE STI REE SCR meer etc eee era 10

BET REE SS es a Re RE la

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Ellis v. Merit Systems Protection Board, 613 F.2d

OR Bo SS Ee eee ee 7

Glenn v. Merit Systems Protection Board, 616

- ££ FO fo eee 7

James vy. Federal Energy Regulatory Comm’n,

755 F.2d 154 (Fed. Cir. 1985) ............................ 9

Kyle v. Interstate Commerce Comm’n, 609 F.2d

GOD: CG Be ethnicities 7

Motley v. Secretary of the Army, 608 F.2d 122

Ce Es Sechelt rcsectc ice icntcccncenteinns 7

Rowe v. Merit Systems Protection Board, 802

if @€ F:. &- Sie 9

Wilson v. Turnage, 750 F.2d 1086 (D.C. Cir.

1984), vacated and transferred, 755 F.2d 967

CS SE I ithe aa atteinetitittendbeietnnstinniesn 7

Wilson v. Tarnage, 791 F.2d 151 (Fed. Cir.

RE saints aaa ecaannntctatltcieeinniateinn 7

Zeizel v. Price, 784 F.2d 405 (D.C. Cir. 1986)... 7

Zipes v. Trans World Airlines, 455 U.S. 385

EE veccericoniaabunsdcnaiesdsi bindlichinasiainiienintichinetaniatabbicieiiantiatts 8

Statutes and Other Authorities:

Civil Service Reform Act of i978, Pub. L. No.

95-454 (1978):

I ID citciccptaniarnennvcrnisnnenciomnncishinsinen 2,6

ici anscisseeaascadiehineiiceieneninneciptilbotnt 7

I aid sisinbcicscenidehinienietsosbunpichccecininptinenctinl 8

Be ID iiciccniiiciessnsaceesticcanchn- -neainnonilitndae 2, 4,8

OP IND iikiestashcececiaicstiinnrsininsthsionslinnicinassnsnanision 2

Se I aetna sbinehaaitantblinkcpmaniinnianiepnicnisciateriandtil 4,9

es II Nicietiicecnceininiadivncncenmnenennciintinwn 2,6

IN THE

Supreme Comet of the United States

OCTOBER TERM, 1986

No.

DANIEL L. EDWARDS, JR.,

- Petitioner,

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Petitioner Daniel L. Edwards, Jr. petitions this Court

for a writ of certiorari to the United States Court of

Appeals for the Federal Circuit.

OPINIONS BELOW

The Court of Appeals for the Federal Circuit’s order

entered on June 11, 1986 dismissing Mr. Edwards’ ap-

peal, see App. A infra at 1a, is not reported. Similarly,

that court’s November 24, 1986 order affirming the dis-

missal on reconsideration is unreported. See App. B

infra at 4a. The decisions of the United States Merit

Systems Protection Board, from which judicial review

was sought, are reproduced at App. C and D infra at 9a-

15a.

JURISDICTION

The judgment of the court of appeals (App. E infra at

16a) was entered on December 2, 1986. On February 11,

2

1987 Mr. Edwards requested, and on February 13, 1987

this Court granted, until March 24, 1987 within which

he might submit this petition for certiorari. This peti-

tion is, accordingly, filed within the time allowed by law.

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 205 of the Civil Service Reform Act of 1978,

Pub. L. No. 95-454, 92 Stat. 1138 (1978), as amended by

Section 144 of the Federal Courts Improvement Act,

Pub. L. No. 97-164, 96 Stat. 45 (1982), and codified at

5 U.S.C. § 7703(b) (1) provides:

Except as provided in paragraph (2) of this sub-

section, a petition to review a final order or final

decision of the Board shall be filed in the United

States Court of Appeals for the Federal Circuit.

Notwithstanding any other provision of law, any pe-

tition for review must be filed within 30 days after

the petitioner received notice of the final order or

decision of the Board.

Section 902(b) of the Civil Service Reform Act of

1978, 92 Stat. 1224 (1978) provides:

No provision of this Act shall affect any administra-

tive proceedings pending at the time such provision

takes effect. Orders shall be issued in such proceed-

ings and appeals shall be taken therefrom as if this

Act had not been enacted.

Section 1201.191(b) of Title 5, Code of Federal Regu-

lations, provides:

Administrative proceedings and appeals therefrom.

No provision of the Civil Service Reform Act shall

be applied by the Board in such a way as to affect

any administrative proceeding pending at the effec-

tive date of such provision. “Pending” is considered

to encompass existing agency proceedings, and ap-

oo. Sate

at

3

-peals before the Board or its predecessor agencies,

that were subject to judicial review or under judicial

review on January 11, 1979, the date on which the

Act became effective. An agency proceeding is con-

sidered to exist once the employee has received notice

of the proposed action.

STATEMENT

This case arises out of Mr. Edwards’ ongoing quest to

rectify an injustice done to him twenty-five years ago.

In November of 1961, Mr. Edwards initiated the process

to obtain a disability annuity from the Civil Service

Commission. Because of ill will and animosity borne

against him by his superior officers, his employing agency

{the Department of the Air Force) never completed

those portions of the retirement application it was re-

quired to submit. Accordingly, Mr. Edwards was not

granted his disability annuity and ultimately he was

removed from his position.

Commencing even before the date of his separation

from federal service in 1962 and continuing for ap-

proximately eighteen years, Mr. Edwards continuously

communicated with the Civil Service Commission and

various elected officials concerning the Air Force’s im-

proper actions. In early 1980, Mr. Edwards was advised

to resubmit his application for a disability annuity, and,

in April, 1980, he did so.

The United States Office of Personnel Management

(“OPM”) denied Mr. Edwards’ second application for

disability retirement as being untimely filed. At no point

did OPM discuss or consider the effect of Mr. Edwards’

previous filing. Racher, it held merely that his 1980 ap-

plication, filed as it was over one year after the date of

his separation, was untimely.

Mr. Edwards appealed OPM’s decision to the Merit

Systems Protection Board (“Board”). The Board held

a hearing, at which Mr. Edwards testified and submitted

4

evidence concerning his original application for a dis-

ability annuity filed in 1961. No representative for OPM

was present at the hearing; OPM advised the Board that

it relied solely upon its determination that the second

application was untimely filed.

Notwithstanding Mr. Edwards’ testimony and docu-

mentary evidence concerning the filing of his initial ap-

plication, and OPM’s failure to offer any countervailing

proof, the Board’s presiding official concluded that Mr.

Edwards had not, in fact, submitted an application for

disability retirement in 1961. See App. D infra at 12a-

14a. Mr. Edwards petitioned the full Board for review

of the initial decision, but the Board, by decision of May

3, 1982, denied Mr. Edwards’ petition and thus affirmed

the initial decision. See App. C infra at 9a.

Because Mr. Edwards had raised an allegation of dis-

crimination prohibited by section 717 of the Civil Rights

Act of 1964, as amended, he sought judicial review of

the Board decision in the United States District Court

for the Southern District of Ohio. See 5 U.S.C. § 7703

(b) (2). Thereafter, Mr. Edwards dismissed his discrim-

ination allegations and obtained a transfer of this matter

to the Federal Circuit pursuant to 28 U.S.C. § 1631.

After this matter was transferred to the Federal Cir-

cuit, Mr. Edwards concluded that the court lacked sub-

ject matter jurisdiction over his claim and thus the ac-

tion was improvidently transferred. Accordingly, before

briefing the merits of his case to the Federal Circuit,

Mr. Edwards moved that court to transfer the action to

the District Court for the District of Columbia.'

The court below, acting on Mr. Edwards’ motion to

transfer, and without the benefit of briefing by the par-

ties, concluded that his appeal was untimely and dis-

eo

1 Mr. Edwards’ chose to transfer the action to the District of

Columbia District rather than the Southern District of Ohio be-

cause all counsel and OPM are located in Washington, D.C.

nF

5

missed it on the merits. See App. A infra at la-2a. Mr.

Edwards sought reconsideration of that decision, arguing

that the court lacked jurisdiction to adjudicate the merits

of the appeal and demonstrating a dispositive error

made by the court by delving into areas which had not

been briefed.*? By letter of September 26, 1986, the court

invited the parties to brief the issue of laches, asking

them to assume that Mr. Edwards had in fact filed an

application with the Civil Service Commission in 1961.

See App. F infra at 18a. Mr. Edwards responded to this

letter, asserting that as the court lacked subject matter

jurisdiction over his appeal, it could not dispose of the

case on nonjurisdictional issues, such as laches, and that,

even if it had jurisdiction, it nonetheless could not con-

sider the issue of laches as that defense had not been

raised below and thus there was no factual predicate

upon which it could base a decision.

On November 24, 1986, the court below affirmed its

dismissal of Mr. Edwards’ appeal on the merits. See

App. B infra at 4a. The court refused to address the

jurisdictional issue raised by Mr. Edwards, and, not-

withstanding that it had no factual predicate to balance

the competing equities, and, indeed, that this defense

had never been raised below, the court dismissed Mr. Ed-

wards’ appeal as barred by laches. This petition for

certiorari timely followed.

2In its June 11, 1986 order dismissing Mr. Edwards’ appeal, the

court below held that Mr. Edwards’ application for a disability

annuity “was never personally filed with the Commission.” App. A

infra at 2a. In his motion for reconsideration, Mr. Edwards not

only identified that portion of the record which evinced his filing

with the Civil Service Commission, but further he established that

under then controlling law his burden was only to file with his

employing agency, not the Civil Service Commission. See App. B

at 5a.

6

REASONS FOR GRANTING THE PETITION

This case presents issues of substantial public impor-

tance concerning the interpretation and operation of the

Civil Service Reform Act. Moreover, this case calls upon

the Court to reaffirm an established rule of appellate

practice ignored by the court below: a court will not

consider on appeal issues which were not addressed be-

low. The Federal Circuit’s refusal to address the juris-

dictional question, and its reliance on facts not found in

the record to fashion a reason to dismiss the case were

inappropriate. The magnitude of that court’s errors

alone warrants plenary review by this. Court.

1. In 1978, Congress enacted the Civil Service Reform

Act to restructure and clarify the laws concerning em-

ployment in the federal government. A key provision of

that legislation, denominated the “Savings Provision,”

provided that those matters which were “pending” on the

date of the enactment of the Reform Act would continue

to be governed by the law then in effect. Specifically, as

it applies here, the Savings Provision provides:

No provision of this Act shall affect any administra-

tive proceeding pending at the time such provision

takes effect. Orders shall be issued in such proceed-

ings and appeals taken therefrom as if this Act had

not been enacted.

5 U.S.C. § 1101 note (1982). Thus, Congress directed

that the Reform Act was not to apply to those cases

which had arisen before its enactment.

The Merit Systems Protection Board has promulgated

a regulation to implement the Savings Provision and to

define “pending” as it appears in the Reform Act. Spe-

cifically, 5 C.F.R. § 1201.191(b) provides:

Administrative proceedings and appeals therefrom.

No provision of the Civil Service Reform Act shall

be applied by the Board in such a way as to affect

any administrative proceeding pending at the effec-

tive date of such provision. “Pending” is considered

T

to encompass existing agency proceedings, and ap-

peals before the Board or its predecessor agencies

which were subject to judicial review or under judi-

cial review on January 11, 1979... An agency pro-

ceeding’ is considered to exist once the employee has

received notice of the proposed action.

Accordingly, the Board has construed the Savings Pro-

vision to preclude application of any provision of the Re-

form Act to personnel actions of which the employee was

notified before January 11, 1979.

The courts have had little difficulty construing the

Savings Provision. As did the District of Columbia Cir-

cuit in Kyle v. Interstate Commerce Comm’n, 609 F.2d

540, 542 (D.C. Cir. 1980), in which the court deferred to

the Board’s construction of the Savings Provision, other

courts have uniformly refused to apply provisions of the

Reform Act to “old systems” cases. See, e.g., Glenn Vv.

Merit Systems Protection Board, 616 F.2d 270, 271 (6th

Cir. 1980) ; Ellis v. Merit Systems Protection Board, 613

F.2d 49, 51 (3d Cir. 1980); Motley v. Secretary of the

Army, 608 F.2d 122, 123 (5th Cir. 1980). Indeed, to the

extent any difference of opinion exists in the construc-

tion of the Savings Provision, it is in the limited area of

the application of the Back Pay Act, 5 U.S.C. § 5596. See

Wilson v. Turnage, 750 F.2d 1086 (D.C. Cir. 1984) (al-

lowing application of attorney fee provision of the Back

Pay Act), vacated and transferred, 755 F.2d 967 (D.C.

Cir. 1985) ; Wilson v. Turnage, 791 F.2d 151, 156 (Fed.

Cir. 1986) (holding the Back Pay Act inapplicable.)

See, also, Zeizel v. Price, 784 F.2d 405, 407 (D.C. Cir.

1986).

Although the court below did not explicitly so hold, this

case is an “old system” case which was pending before

the date of the enactment of the Reform Act.’ Mr. Ed-

3 The court below justified dismissal of Mr. Edwards’ appeal

alternatively as a Reform Act case and as an “old system” case,

without deciding which it was. See App. B infra at 6a-Ta.

8

wards filed an application for disability retirement with

his employing agency in November, 1961 and with the

Civil Service Commission in early 1962. These acts ini-

tiated the “administrative proceedings” which were “sub-

ject to judicial review” before the enactment of the Re-

form Act, and, accordingly, these acts deprived the Fed-

eral Circuit of jurisdiction over Mr. Edwards’ appeal.*

2. Notwithstanding that it lacked jurisdiction, and,

indeed, implicitly recognizing this lack of jurisdiction

(see App. B infra, at 6a), the court below nonetheless

refused to transfer the appeal to a court competent to

entertain it. Instead, the Federal Circuit dismissed Mr.

Edwards’ case on nonjurisdictional grounds. Yet not

only did the court go beyond the threshold jurisdiction

presented to it, but it predicated its decision on an argu-

ment never raised by the parties at any stage of the

proceeding. In so doing, the court below plainly arred.

The court below concluded that Mr. Edwards’ claims

were barred by the equitable doctrine of laches. It is

axiomatic, of course, that statutes of limitations (and

equitable time limitations imposed by the doctrine of

laches) are not jurisdictional in nature. Zipes v. Trans

World Airlines, 455 U.S. 385, 393 (1982). Thus, laches,

unlike subject matter jurisdiction, is not an issue which

may be raised at any time, by any party or the court.

More fundamentally, the court below erred by dismiss-

ing Mr. Edwards’ appeal on the basis of issues never

presented below, either as factual or legal matters. To

4 Congress amended the Reform Act with the Federal Courts Im-

provement Act to provide that judicial review of all cases heard

by the Board under 5 U.S.C. § 7701 would lie exclusively in the

Federal Circuit. See 5 U.S.C. § 7703(b). This amendment did not

bring “old system” cases within the exclusive province of the Fed-

eral Circuit, however, for under the Savings Provision the Board

did not hear such cases under 5 U.S.C. § 7701. Accordingly, the

Federal Courts Improvement Act did not give the court below juris-

diction to entertain Mr. Edwards’ appeal.

9

be sure, the Federal Circuit couched its laches determi-

nation in terms of whether a transfer would be “in the

interest of justice’ within the meaning of 28 U.S.C.

§ 1631. But this does not alter the fact that at no time

was Mr. Edwards’ offered the opportunity to present evi-

dence bearing on the issue of laches—the reasonableness

of any delay, whether the government actively misled

him, whether the government was even prejudiced by the

delay. OPM never raised the defense of laches, and pre-

sumably it elected not to do so for some reason. For the

court to raise this issue, on its own motion and without

the benefit of any briefing or development of the eviden-

tiary record, was improper.

The Federal Circuit itself has repeatedly held that

parties will not be heard to argue on issues not presented

in the lower forum. James v. Federal Energy Regzla-

tory Comm’n, 755 F.2d 154, 156 (Fed. Cir. 1985) ; Rowe

v. Merit Systems Protection Board, 802 F.2d 434, 437

(Fed. Cir. 1986) (“We are not a trial court and can

function only at the appellate level.”) Yet here the court

has ignored its own admonition by reaching out and

finding a basis to support its improvident dismissal.

Since it had no jurisdiction over the subject matter of

Mr. Edwards’ appeal, it had no business dismissing that

claim on nonjurisdictional grounds. Even if the court

were not required under 28 U.S.C. § 1631 to transfer

this case to the district court, and we submit that in the

interest of justice it was, nonetheless it should have dis-

missed the case on jurisdictional grounds only, so that

the court with subject matter jurisdiction, and a full fac-

tual record, could consider any issue of laches raised by

the government. By so abandoning its role as adjudica-

tor and instead adopting the role of advocate, the court

below erred. This Court cannot sanction that error.

10

CONCLUSION

For the foregoing reasons, Mr. Edwards’ petition for a

writ of certiorari to the United States Court of Appeals

for the Federal Circuit should be granted.

MARCH, 1987

Respectfully submitted,

IRVING KATOR

JOSEPH B. SCOTT

JAMES H. HELLER

MICHAEL J. KATOR

Counsel of Record

KATOR, ScoTT & HELLER, CHTD.

1029 Vermont Avenue, N.W.

Ninth Floor

Washington, D.C. 20005

(202) 393-3800

Attorneys For Petitioner

APPENDICES

la

APPENDIX A

_--UNITED STATES COURT OF APPEALS

“. FOR THE FEDERAL CIRCUIT

Appeal No. 86-516

DANIEL L. EDWARDS,

Petitioner,

V.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

ON MOTION TO TRANSFER

[Filed June 12, 1986]

Before MARKEY, Chief Judge, FRIEDMAN, and

RICH, Circuit Judges.

ORDER

Daniel L. Edwards (Edwards) appealed from a deci-

sion of the Office of Personnel Management (OPM) de-

nying his application for disability annuity as untimely.

Edwards appealed the board’s decision to the District

Court for the Southern District of Ohio in early 1982.

By agreement, the parties transferred the case to this

court on October 3, 1985. Edwards now moves to trans-

fer this appeal again, this time to the United States

District Court for the District of Columbia.

a

2a

The basis for the motion is that this is an “old system”

case, i.e., one alleged to have been pending on January 11,

1979, the effective date of the Civil Service Reform Act

(CSRA), and therefore outside the jurisdiction of this

court. Pub. L. 95-454, § 902(b) (1978).

Edwards alleges that he filed an application for dis-

ability annuity with the Air Force in 1961 and that the

Air Force refused to process and forward his applica-

tion. Edwards does not, however, allege that he chal-

lenged that “refusal.” Assuming the truth of Edwards’

allegation, his claim was of no force or effect because

it was never personally filed with the Commission as

required by 5 C.F.R. § 29.5(c) and Pub. L. No. 70-854,

7(b) (70 Stat. 750 (1956)). See also 5 U.S.C. § 8337

(b). No judicially reviewable agency proceedings were

in existence on January 11, 1979, and the claim was

clearly not “pending” on January 11, 1979. Edwards’

alleged application, therefore, cannot render this an “old

system” case. Accordingly, this court has jurisdiction.

On December 15, 1981 the board held that Edwards’

first application for disability retirement was filed not

with the Commission in 1961, but with OPM on April 29,

1980. It therefore sustained OPM’s finding that Ed-

wards’ claim of April 29, 1980, coming some 20 years

after discharge, was untimely. See 5 U.S.C. § 8337(b)

(claim for annuity must be filed within one yar of dis-

charge).

Edwards’ claim being without question untimely, no

basis exists for either transfer or maintenance of this

appeal.

Accordingly, IT IS ORDERED:

(1) The motion to transfer is denied.

(2) The appeal is dismissed as being without any

possible foundation.

11 June 86

Date

FoR THE COURT

/s/ Howard T. Markey

HOWARD T. MARKEY

Chief Judge

ec: Michael J. Kator, Esq.

Richard C. Brooks, Esq.

Michael T. Paul, Esq.

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 86-516

DANIEL L. EDWARDS,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

ON MOTION

Before MARKEY, Chief Judge, FRIEDMAN, and

RICH, Circuit Judges.

ORDER

On June 11, 1986, this Court denied Edwards’ motion

to transfer and dismissed the appeal as being without

foundation. Edwards filed a motion for reconsideration

and OPM filed a response. Also, in response to the

Court’s request, each party has addressed the effect of

Edwards’ extensive delay in pursuing his appeal rights.

We have reconsidered our earlier order in light of the

parties’ submissions, but we deny Edwards’ request to

reinstate and to transfer the appeal.

Though Edwards applied to OPM for a disability an-

nuity in 1980, he alleges that he filed an earlier applica-

tion with the Air Force in 1961 which the Air Force

5a

refused to process and forward to the Civil Service Com-

mission (CSC). Edwards argues that his claim was still

pending on January 11, 1979, the effective date of the

Civil Service Reform Act, and therefore this is an “old

case” outside the jurisdiction of this Court. Pub. L.

95-454 §902(b) (1978). However, on December 15,

1981, the Merit Systems Protection Board (MSPB) held

that Edwards’ application was filed not in 1961 but in

1980, nearly 20 years after discharge and, hence, was

untimely. See 5 U.S.C. § 8337(b) (claim for annuity

must be filed within one year of discharge). Edwards

sought relief from that MSPB decision in the District

Court for the Southern District of Ohio in early 1982 but,

per agreement of the parties, the case was transferred

here in 1985.

In the June 11, 1986 Order, this Court concluded, as

had the MSPB, that even if Edwards filed a 1961 appli-

cation, he failed to file it with the CSC as required by

statute and regulation; instead, he filed it with the

agency. Consequently, concluded the Court, there were

no judicially reviewable proceedings as of January 11,

1979, and, hence, this was not an “old system” case and

this Court had jurisdiction. The Order then held that,

because Edwards did not file until 1980, it was without

question untimely. Hence, the appeal was dismissed.

Underlying the June 11 Order is the view that Ed-

wards was required to file personally with the CSC;

filing with the agency was insufficient. In his Motion for

Reconsideration, Edwards cites provisions of the Federal

Personnel Manual (FPM) allegedly allowing him to file

the application with the agency, with the agency incur-

ring the obligation to forward it to the Commission.

Edwards also contests the Order’s statement that he

never challenged the agency’s alleged refusal to forward

the application to the CSC. He cites transcript testimony

to the effect that he sent an appeal to the CSC on Janu-

ary 12, 1962. However, even if Edwards’ allegations

6a

are true, our dismissal and refusal to transfer are com-

pelled by Edwards’ substantial delay in pursuing any

rights he may have had.

This case is either an “old case” or a “new case.” If

it is a “new case,” i.e., if there was no claim pending on —

January 11, 1979, then Edwards’ claim is without ques-

tion untimely because Edwards waited some 19 years

before filing for disability. Hence, the appeal would have

to be dismissed. Moreover, transfer would be inappro-

priate because jurisdiction over a “new case” does not

lie in the district court.

If this is an “old case,” as Edwards maintains, we

would not have jurisdiction and, again, dismissal would

be warranied. Though 28 U.S.C. § 1631 allows us to

transfer cases to the district court, we can do so only if

the transfer is in the “interest of justice.” See, e.g.,

Bray v. United States, 785 F.2d 989, 993 (Fed. Cir.

1986). Accord, In re Exclusive Industries Corp., 751

F.2d 806, 809 (5th Cir. 1985); Hempstead Cty. & Ne-

vada Cty. Project v. USEPA, 700 F.2d 459, 462 (8th

Cir. 1983). Cf. Goewey v. United States, 612 F.2d 539

(Ct. Cl. 1979) ; Williams Int'l. Corp. v. U.S., 7 Cl. Ct.

726 (Cl. Ct. 1985); Little River Lumber Co. v. United

State, 7 Cl. Ct. 492 (Cl. Ct. 1985). That “interest” would

not be promoted by transfer here.

At some reasonable point in time after Edwards al-

legedly protested to the Air Force and “appealed” to the

CSC (early 1962), he should have realized that neither

the agency nor the CSC would act on his claim. We

need not define that point in time, precisely, because Ed-

wards waited until April, 1980 to pursue before OPM

whatever rights he had—some 18 or 19 years after his

“appeal” to the Air Force and CSC. Moreover, it was

not until 1982 that Edwards sought relief in district

court. Edwards had only 6 years under 28 U.S.C. § 2401

(a) to protest in district court the CSC’s alleged original

Ta

refusal to process his claim. See, e.g., Oppenheim v.

Campbell, 571 F.2d 660 (D.C. Cir. 1978) ; Saffron v. De-

partment of the Navy, 561 F.2d 938 (D.C. Cir. 1977),

cert. denied, 484 U.S. 1033 (1978); United States v.

Sams, 521 F.2d 421 (3rd Cir. 1975). That 6 year period

clearly expired at some point between 1962 and 1980.

Indeed, Edwards did not sue in district court until 1982,

some 20 years after he was allegedly wronged and cer-

tainly more than 6 years after he should have become

aware of any wrong.

The “interest of justice” is ill served by allowing Ed-

wards to wait as long as he did to assert his rights and

then transferring his case to district court where his

claim would be denied on statute of limitations grounds.

As stated in Goewey v. United States, 612 F.2d 539, 541

(Ct. Cl. 1979), “[t]ransfer of a claim that is barred by

the statute of limitations would not serve th[e]se inter-

ests [of justice].”* See also Bray v. United States, 785

F.2d 989, 993-94 (Fed. Cir. 1986); Dancy v. United

States, 668 F.2d 1224, 1228-29 (Ct. Cl. 1982) (‘We also

deny plaintiff’s request to transfer his suit to district

court, because any tort claim he might have brought is

now time-barred.”) ; Little River Lumber Co. v. United

States, 7 Cl. Ct. 492 (Clms. Ct. 1985) (‘‘a case should

not be transferred or retransferred to a district court if

it most probably would be a futile act.”). Moreover, Ed-

wards’ original accord two years ago to transfer the case

from district court here makes transfer “in the interest

of justice” even less compelling.

Edwards argues that the statute of limitations is not

a jurisdictional issue. Whether it is “jurisdictional” is

irrelevant to our determination that the interests of

justice are not served in this case by transferring a time

* Goewey involved 28 U.S.C. § 1506 (1976), which allowed cases

improperly filed in the Court of Claims to be transferred to district

court in “the interest of justice.”

8a

barred claim. Edwards cites Zipes v. Trans World Air-

lines, 455 U.S. 385 (1982), but that action involved a

suit against a private party. In suits against the gov-

ernment, the statute of limitations is jurisdictional. See,

e.g., Soriano v. United States, 352 U.S. 270, 271 (1957) ;

Jones v. United States, 801 F.2d 1334, 1335 (Fed. Cir.

1986); Bray v. United States, 785 F.2d 989, 992 (Fed.

Cir. 1986).

FOR THE COURT

/s/ Howard T. Markey

HOWARD T. MARKEY

Chief Judge

24 Nov. 86

Date

ee: Michael J. Kator, Esq.

Michael T. Paul, Esq.

9a

APPENDIX C

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Docket Number CH831L8110611

DANIEL L. EDWARDS. JR.

V.

OFFICE OF PERSONNEL MANAGEMENT

ORDER

Having fully considered appellant’s petition for review

of the initial decision issued on December 15, 1981, and

finding that it does not meet the criteria for review set

forth at 5 C.F.R. § 1201.115, the Board hereby DENIES

the petition.

This is the final order of the Merit Systems Protection

Board in this appeal. The initial decision shall become

final five (5) days from the date of this order. 5 C.F.R.

§ 1201.113(b).

Appellant is hereby notified of the right to seek judi-

cial review of the Board’s action as specified in 5 U.S.C.

§ 7703. A petition for judicial review must be filed in

the appropriate court no later than thirty (30) days

after appellant’s receipt of this order.

FOR THE BOARD:

May 3, 1982

(Date)

/s/ Robert S. Taylor

Washington, D.C.

10a

APPENDIX D

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

Decision Number: CH831L8110611

IN THE MATTER OF:

DANIEL L. EDWARDS, JR.

Vv.

OFFICE OF PERSONNEL MANAGEMENT

Date: December 15, 1981

INTRODUCTION

By petition filed on August 28, 1981, Mr. Daniel L. Ed-

wards, Jr., appealed from an August 21, 1981 reconsid-

eration decision issued by the Office of Personnel Man-

agement (OPM), Washington, D.C. This reconsideration

decision sustained the May 11, 1981 decision denying the

appellant’s April 29, 1980 application for disability re-

tirement. 3

BACKGROUND

The appellant was formerly employed by the Department

of the Air Force, Wright-Patterson Air Force Base, Day-

ton, Ohio. On April 23, 1962, the appeliant was involun-

tarily separated from government service (Tr. at 6). At

the time of his separation, the appellant withdrew his

deposit from the Civil Service Retirement Fund (Appel-

lant Exhibit 1). OPM?’s file showed that for approxi-

lla

mately eighteen years the appellant consistently corre-

sponded with elected officials and the United States Civil

Service Commission (now OPM) concerning improper

actions by the Department of the Air Force and alleged

discrimination against him on the basis of religion. The

appellant, on April 29, 1980, made application for a dis-

ability retirement. OPM, on May 11, 1981, issued a deci-

sion to disallow the appellant’s application because it was

not filed in a timely manner. However, OPM’s decision

erroneously informed the appellant to appeal to the Merit

Systems Protection Board (Board) rather than request

reconsideration within OPM, and an appeal was sub-

mitted to the Board. On July 6, 1981, OPM moved that

the Board dismiss the appellant’s appeal because it was

premature. In an initial decision dated July 23, 1981

(CH831L8110428), the appellant’s premature appeal was

dismissed without prejudice. OPM, on August 21, 1981,

issued a reconsideration decision sustaining the initial

decision of May 11, 1981 to disallow the appellant’s ap-

plication for a disability retirement because it was not

timely filed. After OPM’s reconsideration decision, the

appellant, on August 28, 1981, again appealed to the

Board claiming that OPM’s decision was improper be-

cause he filed a November 2, 1961 application for a dis-

ability retirement with the Department of the Air Force,

Wright-Patterson Air Force Base and that the Wright-

Patterson Air Force Base refused to process and for-

ward his application to the United States Civil Service

Commission in Washington, D.C. (Tr. at 27, 28). The

appellant, however, did not claim that he was unable to

submit a timely application due to mental incompetence

(Tr. at 22).

— JURISDICTION

Federal employees have the right to appeal to the Merit

Systems Protection Board from any action which is ap-

pealable to the Board under any law, rule, or regulation.

5 U.S.C. 7701(a) (1980). 5 U.S.C. 8347(d) provides a

12a

statutory right of appeal to the Board from OPM’s ad-

ministrative actions or orders affecting civil service re-

tirements. The OPM regulations provide for a direct ap-

peal to the Board from a final OPM reconsideration deci-

sion concerning disability retirement. 5 C.F.R. 831.1205

(1981).

ANALYSIS AND FINDINGS

Under the provisions of 5 U.S.C. 8337(b) (1980) (origi-

nal version in Act of July 31, 1956, Pub. L. No. 70-854,

7(b), 70 Stat. 750), OPM may allow a claim for disabil-

ity retirement annuity “. . . only if the application is

filed with the Office before the employee . . . is separated

from the service or within 1 year thereafter.” This sec-

tion authorizes OPM to waive the time limit for appli-

cants who were unable to file within the time frame due

to mental incompetency. In allocating the burden of

proof in this appeal, I note that the Board has held, in

Chavez v. Office of Personnel Management, MSPB Order

No. DA831L09003 (May 28, 1981), that in an appeal

from an OPM denial of a voluntarily-initiated applica-

tion for disability retirement the employee bears the bur-

den of persuasion by a preponderance of the evidence

that he is entitled to a disability retirement. Jd. at 20.

The current situation is analogous to Chavez because

OPM determined that the appellant did not have a statu-

tory entitlement to file a voluntary application for a dis-

ability retirement. The current situation is also analo-

gous to the Board’s regulation placing the burden upon

the appellant to show that an attempted appeal was filed

in a timely manner or that an attempted appeal is within

the Board’s appellate jurisdiction. See 5 C.F.R. 1201.56

(a) (2) (1981). The foregoing leads me to the conclu-

sion that the appellant bears the burden of persuasion

by a preponderance of the evidence that he filed an ap-

plication for a disability retirement in a timely manner.

With respect to the appellant’s claim that he filed an ap-

plication for disability retirement in November of 1961,

13a

the appellant testified that he filed an application for a

disability retirement on November 2, 1961, and that his

application was “. . . disapproved and held in abeyance

by Major James Chatfield” (Tr. at 6). The appellant

explained that he had a conflict with Major Chatfield be-

cause he had refused to contribute money to a church

charity (Tr. at 6). The appellant further explained that

he had a November 10, 1961 meeting concerning the fail-

ure of the Department of the Air Force to process his

application for disability retirement and that during this

meeting he was harassed and badgered by Colonel West-

brook and Major Chatfield (Tr. at 11). The appellant

added that an Air Force physician refused to examine

him and that Major Chatfield contacted his family physi-

cian concerning his medical condition (Tr. at 15). The

appellant’s testimony was supported by three letters of

protest dated November 23, 1961 (Appellant Exhibit 1),

April 16, 1962 (Appellant Exhibit 4), and April 21, 1962

(Appellant Exhibit 3) to various officials within the De-

partment of the Air Force concerning delays in process-

ing his application for a disability retirement. The ap-

pellant’s testimony, however, was not supported by a

copy of the November 2, 1961 application for a disability

retirement. Furthermore, the appellant’s testimony was

not supported by any testimony or statements from any

individual that had personal knowledge of the existence

of the appellant’s November 2, 1961 application for a

disability retirement. Although the appellant’s evidence

was consistent and detailed, I must be cognizant of the

fact that it is virtually impossible to disprove the appel-

lant’s claims due to the passage of time. I also must be

cognizant of the fact that for the appellant’s testimony

to be true at least two military officers had to engage in

misconduct (i.e. deliberate failure to process an applica-

tion for disability retirement) to spite the appellant for

failure to give money to a church charity. In brief, the

appellant’s claim that approximately eighteen years ago

14a

that the Department of the Air Force refused to process

his application for a disability retirement is only sup-

ported by the appellant’s unsubstantiated testimony and

letters. Since the appellant’s claims are not credible, I

find that the appellant did not submit a disability retire-

ment application until 1980.

Although the appellant emphasized that he filed an ap-

plication for a disability retirement within his former

employing agency, 5 U.S.C. 8337(b) (1980) requires

that an application be filed with one year with OPM

(formerly the United States Civil Service Commission)

rather than filed within an employee’s agency (emphasis

added). The only provision for a waiver of the one year

requirement is mental incompetence. The appellant, how-

ever, is not claiming that his application for a disability

retirement was delayed due to mental incompetence. In

analyzing this appeal, I note that there is Board prece-

dent for a finding that OPM’s administrative discretion

in waiving the statutory one year requirement is lim-

ited to cases of mental incompetence by the applicant.

See In re Shinko, 1 MSPB 327 (1980). After reviewing

all of the evidence and the applicable statute, I find it

more likely to be true than not true that the appellant

did not submit an application for a disability retirement

in a timely manner. Since the appellant has failed to

meet his burden of persuasion, I will sustain OPM’s re-

consideration decision. See 5 5U.8.C. 7701(c) (1) (B)

(1980) ;5 C.F.R. 1201(a) (ii) (1981).

DECISION

The reconsideration decision is affirmed.

This decision is an initial decision and will become a

final decision of the Merit Systems Protection Board on

Jan. 19, 1982 unless a petition for review is filed with

the Board or the Board reopens the case on its own

motion.

15a

Any party to this appeal or the Director of the Office of

Personnel Management may file a petition for review of

this decision with the Merit Systems Protection Board.

The petition must identify specifically the exception taken

to this decision, cite the basis for the exception, and refer

to applicable laws, rules, or regulations.

The petition for review must be filed with the Secretary

to the Merit Systems Protection Board, 1120 Vermont

Avenue, N.W., Washington, D.C. 20419 no later than

thirty-five (35) calendar days after the issuance of the

initial decision, cite the basis for the exception, and refer

to applicable laws, rules, or regulations.

The Board may grant a petition for review when a party

submits written argument and supporting documentation

which tend to show that:

(1) New and a material evidence is available that,

despite due diligence, was not available when

the record was closed; or

(2) The decision of the presiding official is based on

an erroneous interpretation of statute or regu-

lation.

Under 5 U.S.C. 7703(b) (1) the appellant may petition

the United States court of appeals for the appropriate

circuit or the United States Court of Claims to review

any final decision of the Board provided the petition is

filed no more than thirty (30) calendar days after the

Board’s decision becomes final.

For the Board:

/s/ Douglas G. White

DouGLAS G. WHITE

Presiding Official

l6a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 86-516

DANIEL L. EDWARDS,

Petitioner,

Vv.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

JUDGMENT

ON APPEAL from the Merit Systems Protection Board

IN CASE No(s). CH831L8110611

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED: Dismissed.

ENTERED BY ORDER

OF THE COURT

/s/ Francis X. Gindhart

FRANCIS X. GINDHART

Dated June 11, 1986

Issued as a mandate: December 2, 1986

Costs; Against, Petitioner.

Peres erie er $2.80

Lec. ud an bose ee REESE $2.80

17a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

717 Madison Place, N.W.

Washington, D.C. 20430

Francis X. Gindhart

Clerk

September 26, 1986

Telephone: 633-6550

Area Code 202

Michael J. Kator, Esq.

Kator, Scott & Heller

1029 Vermont Avenue, N.W.

9th Floor

Washington, D.C. 20005

Honorable Richard K. Willard

Assistant Attorney General

Civil Division

Department of Justice

Washington, D.C. 20530

David M. Cohen, Director

Robert A. Reutershan, Assistant Director

Michael T. Paul, Attorney

Commercial Litigation Branch

Civil Division

Department of Justice

Attn: Classification Unit

2nd Floor, Todd Building

Washington, D.C. 20530

18a

Re: Edwards v. OPM, Appeal No. 86-516

Gentlemen:

Before the Court decides petitioner’s motion to recon-

sider the dismissal of the appeal, it would like each party

to submit within fourteen (14) days from the date of

this letter a brief memorandum on this: Assuming, ar-

guendo, that Mr. Edwards (1) filed an application with

the Air Force in November, 1961, (2) sent three letters

of protest to the Air Force in November, 1961, and April,

1962, and (3) sent an “appeal” to the Civil Service Coin-

mission in April, 1962, what is the effect of this 18-year

delay in pursuing in district court or at the MSPB any

rights he had? See, e.g., Oppenheim v. Campbell, 571

F.2d 660 (D.C. Cir. 1978) ; Saffron v. Department of the

Navy, 561 F.2d 938 (D.C. Cir. 1977), cert. denied, 434

U.S. 1033 (1978) ; United States v. Sams, 521 F.2d 421

(3rd Cir. 1975) ; 28 U.S.C. § 2401(a).

Very truly yours,

/s/ Francis X. Gindhart

FRANCIS X. GINDHART

Clerk