Petition for Writ of Certiorari — Grijalva v. Merit Systems Protection Board (No. 08-1510)

SupreMo Coue U.S.

No. 081510 APR 1 0.2099

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

ALEX M. GRIJALVA,

Petitioner,

V.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal

Circuit

PETITION FOR A WRIT OF CERTIORARI

LINDA ROSE FESSLER, ESQ. CA SBN 049417

Counsel of Record

LAW OFFICES OF LINDA ROSE FESSLER

234 S Figueroa St, Ste 541

LOS ANGELES CA 930012

(213) 617-8684: rax (866) 492-1546

Emaul: LFess69012@aol.com

QUESTIONS PRESENTED

1. Whether the court below erred in affirming the

Merit Systems Protection Board’s (hereinafter the

“Board”) denial of Petitioner’s petition for review of

the decision issued by the administrative judge to

dismiss Petitioner’s appeal of a decision by the De-

partment of Homeland Security, (hereinafter the

“Agency’) based on untimely filing of Petitioner’s ap-

peal to the administrative judge.

2. Whether the court below erred in affirming the

Board’s denial of Petitioner’s petition for review of

the decision issued by the administrative judge based

on procedural issues only, instead of on the merits of

the case.

3. Whether the court below denied Petitioner his

right to due process under the provisions of the Fifth

Amendment to the U.S. Constitution.

(1)

PARTIES TO THE PROCEEDING

ALEX M. GRIJALVA -— Petitioner

MERIT SYSTEMS PROTECTION BOARD - Respondent

United States Court of Appeals for the Federal Circuit

(11)

TABLE OF CONTENTS

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STATUTES AND CONSTITUTIONAL PROVISIONS........ 2

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REASONS FOR GRANTING THE WRIT ................. 5

A. Board Policy Considerations Counsel

Against Dismissals For Untimely Filing

And Miltate For Providing Employees

With A Hearing On The Merits Of Their

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B. If The Employee Gives A Reasonable

Excuse For The Delay, Such Excuse

Should Be Accepted By The Presiding

Official, Absent A Showing Of

Substantial Prejudice To The Agency

Caused By The Delay In Filing..................... 6

C. Any Doubt About Whether Good Cause

Has Been Shown Should Be Resolved In

Favor Of An Appellant. Good Cause Is

An Elastic Concept [Which] Entitles

The Employee To The Application Of

The Broad Equitable Principles Of

Justice And Good Conscienceé...................:068 8

D. The United States Court Of Appeals For

The Federal Circuit Has Failed To

Follow Its Own Precedents, Resulting In

An Unjust Dismissal Of An Appeal On

Procedural Grounds, Depriving Plaintiff

Of His Fifth Amendment Right To Due

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TABLE OF AUTHORITIES

Cases Page

Adams v. State, 128 P.3d 400, 2005 UT 62.............. 10

Ceja v. United States, 710 F.2d 812 (Fed. Cir.

i ve cit.) ) en RR ST inee tte MAY ch) Oe RASS ERP &

Pfaehler v. Merit Systems Protection Board, 783

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Phillips v. United States Postal Service, 695

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Walls v. Merit Systems Protection Bd., 29 F.3d

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Young v. Department of Commerce, 737 F.2d

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Yuni v. Merit Systems Protection Board, 784

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Constitutional Provisions

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Statutes

Code of Federal Regulations, 5 C.F-R. §1201. 115(d)........ 3

Code of Federal Regulations, 5 C.F_R. $1201.

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Code of Federal Regulations, 5 CL.F.R. $1201.

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Code of Federal Regulations, 5 C.F.R. §1201.12........ 2

(iv)

jn The

Supreme Court of the Anited States

ALEX M. GRIJALVA,

Petitioner,

V.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal

Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner requests that a writ of certiorari issue to

review the final order of the United States Court of

Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the Merit Systems Protection Board

is unpublished and reproduced in the Appendix at A-

27. The United States Court of Appeals for the Fed-

eral Circuit order affirming the Merit Systems Pro-

tection Board’s opinion is unpublished and repro-

duced in the Appendix at A-14.

to

JURISDICTION

On June 19, 2007, the Agency issued a notice of

decision removing Petitioner for cause from his posi-

tion a maintenance mechanic. Petitioner appealed.

On November 26, 2007, the administrative judge

dismissed Petitioner’s appeal as untimely filed. On

March 21, 2008, the Board denied Petitioner’s peti-

tion for review. On January 12, 2009, the United

States Court of Appeals for the Federal Circuit af-

firmed the Board’s denial.

STATUTES AND CONSTITUTIONAL PROVISIONS

Federal Statutes

The Code of Federal Regulations, 5 C.F.R. $1201.12

states in pertinent part:

“The Board may revoke, amend, or waive any of

these regulations. A judge may, for good cause

shown, waive a Board regulation unless a statute

requires application of the regulation.”

The Code of Federal Regulations, 5 C.F.R. §1201.

22(6)(1) states 1n pertinent part:

“...an appeal must be filed no later than 30 days

after the effective date, if any, of the action being

appealed, or 30 days after the date of receipt of the

agency's decision, whichever is later.”

The Code of Federal Regulations, 5 C.F.R. $1201.

56(a)(2)(ii) states in pertinent part:

“The appellant has the burden of proof, by a pre-

ponderance of the evidence, with respect to...The

timeliness of the appeal...”

The Code of Federal Regulations, 5 C.F.R.

$1201.113(b) states in pertinent part:

“If the Board denies all petitions for review, the in-

itial decision will become final when the Board is-

sues its last decision denying a petition for review.”

The Code of Mederal Regulations, 5 C.F.R. §1201. 115(d)

states in pertinent part:

“The Board...may grant a petition for review when

it is established that...New and material evidence

is available that, despite due diligence, was not

available when the record closed...”

U.S. Constitution

The U.S. Constitution, Fifth Amendment states in

pertinent part :

“No person shall...be deprived of life, liberty, or

property, without due process of law...”

STATEMENT OF THE CASE

On June 13, 2007, the Agency issued a letter of de-

cision removing the Petitioner, Alex M. Grijalva, for

cause from his position as a Maintenance Mechanic

(App. A-69). On September 11, 2007, 48 days after

the statutory deadline for filing an appeal, the Peti-

tioner filed his appeal of that decision to the Board

without benefit of counsel (App. A-40; A-41). His ap-

peal was reviewed by Administrative Judge LuNell

C. Anderson.

Petitioner filed his original appeal with the Agency

pro se (App. A-40; A-41). He was simultaneously in-

volved with a criminal action directly related to, and

consequent to, his being removed for cause by the

Agency (App. A-69; A-81). He believed — incorrectly —

that the thirty-day time to file his appeal commenced

with the Federal Prosecutor’s decision on whether he

would be charged with a felony or a misdemeanor

(App. A-44), and consequently filed his original ap-

peal within 30 days of the prosecutor's decision, but 48

days after the date of receipt of the agency's decision.

This constituted an inadvertent violation of the proce-

dural rules.

Because it appeared that the Petitioner’s petition

for appeal was untimely filed, Judge Anderson issued

an acknowledgment order on September 17, 2007,

advising the Petitioner of the Board’s filing require-

ments and ordering him to respond within 10 days

with evidence and/or argument showing that his ap-

peal was timely filed or that good cause existed for

the delay (App. A-30).

On September 21,.2007, the Petitioner responded

to the acknowledgment order, again without benefit

of counsel, but failed to address definitively the per-

tinent issues raised by Judge Anderson (App. A-44).

Subsequently, on November 26, 2007, Judge An-

derson dismissed Petitioner’s Appeal on procedural

grounds as untimely filed (App. A-19).

On December 28, 2007, Petitioner filed a Petition

for Review of Judge Anderson’s decision, this time

through the Law Offices of Linda Rose Fessler, coun-

sel of record herein (App. A-46).

On March 21, 2008, the Board denied Petitioner’s

Petition for Review, issuing its final decision in the

matter (App. A-27).

On May 16, 2008, Petitioner filed his Petition for

Review with the Court of Appeals for the Federal

Circuit (App. A-56).

On January 12, 2009, the United States Court of

Appeals for the Federal Circuit affirmed the Board’s

denial. (App. A-14)

By denying the appeal on procedural grounds, the

Board has made it impossible for the matter to be

heard on its merits. Petitioner is not addressing the

merits of his original appeal; all Petitioner wants is

his constitutional right of due process, the chance for

his appeal to be heard on its merits — for somebody

other than the self-interested Agency to hear the

facts.

REASONS FOR GRANTING THE WRIT

A. Board Policy Considerations Counsel Against Dismis-

sals For Untimely Filing And Militate For Providing

Employees With A Hearing On The Merits Of Their

Appeals

In Walls v. Merit Systems Protection Bd., 29 F.3d

1578 (Fed. Cir. 07/26/1994) the United States Court

of Appeals for the Federal Circuit (hereinafter the

“Court”) said (at |22]):

The Board has acknowledged that its “regulations

include no specific criteria for determining when

good cause has been shown for waiving the time

limitation on the filing of an appeal.” Alonzo v. De-

partment of the Air Force, 4 M.S.P.R. 180, 184

(1980). Furthermore, the Board has also noted that

policy considerations counsel against dismis-

sals for untimely filing and militate for pro-

viding employees with a hearing on the me-

rits of their appeals, id. at 183 (citing S. Rep.

No. 969, 95th Cong., 2d Sess. 24, 51 (1978), re-

printed in 1978 U.S.C.C.A.N. 2723, 2778), and that

“broad equitable principles of Justice and

good conscience” should be applied in good

cause determinations, id. at 184. [emphasis

added] Walls v. Merit Systems Protection Bd., 29

F.3d 1578 (Fed. Cir. 07/26/1994)

In the within case, Petitioner was discharged for

cause by the Agency (App. A-69), and filed an un-

timely appeal to the Board (App. A-40; A-41). The

Board dismissed his appeal for the untimeliness

(App. A-27), and the Court affirmed that dismissal

(App. A-14), so that Petitioner did not have a hearing

on the merits of his case. This runs directly counter

to the Court’s interpretation of the Board’s stated

policy that “broad equitable principles of Justice and

good conscience should be applied in good cause de-

terminations.”

B. If The Employee Gives A Reasonable Excuse For The

Delay, Such Excuse Should Be Accepted By The Pre-

siding Official, Absent A Showing Of Substantial Pre-

judice To The Agency Caused By The Delay In Filing.

The Petitioner gave reasons for his late filing, spe-

cifically citing a related criminal case where he was

awaiting a determination by the Federal Prosecutor

of whether he was facing a felony or a misdemeanor

charge (App. A-81; A-85), and specifically stating

that he thought the time for filing his appeal ran

from the date of that determination (App. A-44). Pe-

titioner was pro se, (and thus without benefit of

counsel), facing a hugely life-altering event, and

made a decision he thought was correct. The Peti-

tioner’s decision was reinforced by a favorable unem-

ployment benefits decision that seemed to support

the merits of his case (App. A-88). Despite this, the

Board (as affirmed by the Court) breached its own

policy consideration that “...counsel|s] against dis-

missals for untimely filing and militate[s] for provid-

ing employees with a hearing on the merits of their

appeals...(Walls v. Merit Systems Protection Hd., 29

F.8d 1578 (Fed. Cir. 07/7 26/1994)).

The Board and the affirming Court further ignored

the Court’s determination that “...broad equitable

principles of Justice and good conscience should be

applied in good cause determinations.... If the em-

ployee gives a reasonable excuse for the delay,

such excuse should be accepted by the presid-

ing official, absent a showing of substantial

prejudice to the agency caused by the delay in

filing.” [emphasis added] (Walls v. Merit Systems

Protection Bd., 29 F.8d 1578 (Fed. Cir. 07/26/1994)).

Since the Agency was silent on the matter of

“'..substantial prejudice to the agency caused by the

delay in filing,” one must presume there was no pre-

judice to the Agency resulting from Petitioner's late

filing.

In Walls, the Court concluded simply that “Be-

cause petitioner has shown good cause for his un-

timely filing and because the Agency has made no

showing of substantial prejudice flowing from

the...filing delay, we hold that the AJ abused his dis-

cretion by not waiving the filing deadline for good

cause.” (Walls v. Merit Systems Protection Bd., 29

F.3d 1578 (Fed. Cir. 07/26/1994)) Similarly, in

Pyles v. Merit Systems Protection Bd., 45 F.3d 411

(Fed. Cir. 01/10/1995), the Court found that “ [38]

Because Pyles showed good cause for her untimely

filing, and the OPM made no effort to show substan-

tial prejudice flowing from the delay, we hold that

the denial of the waiver was an abuse of discretion.”

In the within case, Petitioner presented reasons he

clearly believed were sufficiently substantial to merit

a waiver of the untimely filing, whereas the Agency

made no effort to show substantial prejudice flowing

from the delay. Petitioner's case should, therefore, be

heard on its merits, and not be dismissed on proce-

dural grounds.

C. Any Doubt About Whether Good Cause Has Been

Shown Should Be Resolved In Favor Of An Appellant.

Good Cause Is An Elastic Concept [Which] Entitles

The Employee To The Application Of The Broad

Equitable Principles Of Justice And Good Conscience

In Ceja v. United States, 710 F.2d 812 (Fed. Cir.

06/27/1983) the Court noted that “[21] Alonzo, et al.

v. Department of the Air Force, et al., 80 FMSR para.

7032 (1980) is the seminal decision of the MSPB

which delineates the factors which are to be consi-

dered in deciding whether the...time limit for appeal

is to be waived.” The Court then further notes that

the Alonzo decision states in part:

|22] if the employee gives a reasonable excuse for

the delay, such excuse should be accepted by

the presiding official, absent a showing of

substantial prejudice to the agency caused by

the delay in filing. The appellant need not show

an utter impossibility, but only that the delay was

excusable in light of the particular facts and at-

tending circumstances where diligence or ordinary

prudence has been exercised....

[24] Generally, we believe that in cases such as

these, any doubt about whether good cause

has been shown should be resolved in favor

of an appellant. In determining whether the

agency was unduly prejudiced by the delay, we

have balanced the equities involved, weighing the

difficulties of the agency against the benefit to the

appellant. [emphasis added]

9

Ceja v. United States, 710 F.2d 812 (Fed. Cir.

06/27/1983)

In Pfaehler v. Merit Systems Protection Board, 788

F.2d 187 (Fed. Cir. 02/10/1986) the Court once

again addresses this issue by saying that “[27]... in

keeping with Alonzo: “good cause is an elastic con-

cept [which] entitles the employee to the application

of the broad equitable principles of justice and good

conscience”. 4 M.S.P.R. at 1838-4.”

The foregoing statements seem to leave no doubt

that the Board should have waived the late filing in

the within case, and reviewed the case on its merits,

and that the Court should have reversed the Board’s

dismissal.

In Yuni v. Merit Systems Protection Board, 784

F.2d 381 (Fed. Cir. 02/19/1986) the Court said:

[31] Once more we seek to apply the wisdom ex-

pressed by the MSPB in Alonzo v. Department of

the Air Force, 4 M.S.P.R. 180, 183-84 (1980): “good

cause’ is an clastic concept . . . [which] entitles the

employee to the application of the broad equitable

principles of justice and good conscience.” In Ceja

v. United States, 710 F.2d 812, 814 (Fed. Cir.

1983), this court quoted Alonzo with approval to

the effect that any doubt as to whether good cause

has been shown should be resolved in favor of an

appellant, that an appellant need not show impos-

sibility but only that the delay was excusable in

light of the surrounding circumstances where or-

dinary prudence had been exercised, and that a

reasonable excuse should be accepted by the pre-

siding official absent proof of substantial prejudice

to the agency.

Yuni vu. Merit Systems Protection Board, 784 F.2d

381 (Fed. Cir. 02/19/1986)

10

The Court acknowledged that “[16] The statutory

provisions for appeals to the board give the board

broad discretion in handling appeals and controlling

its own docket by requiring that appeals be processed

in accordance with regulations prescribed by the

board.” Phillips v. United States Postal Service, 695

F.2d 1389 (Fed. Cir. 12/28/1982). But in Young uv.

Department of Commerce, 7387 F.2d 1029 (Fed. Cir.

06/28/1984) said:

[23] Notwithstanding our deference to the

M.S.P.B. under Phillips, we find here that the

excuses offered by petitioners are reasonable and

find no showing of prejudice to the agency in the

record. Under the circumstances of this case, we

hold that the M.S.P.B. abused its discretion in not

accepting the three appeals.

Young v. Department of Commerce, 737 F.2d 1029

(Fed. Cir. 06/28/1984)

As in Young and Yuni, Petitioner herein supplied

the Board with “a reasonable excuse” in this case,

and the Agency remained silent on the matter, de-

clining to present “proof of substantial prejudice to

the agency.” Any doubt, therefore, should have been

decided in favor of the Petitioner.

Although not precedential, it is interesting to note

that the Utah Supreme Court determined that “An

analysis of what constitutes an exception in the “in-

terests of justice” should involve examination of both

the meritoriousness of the petitioner's claim and the

reason for an untimely filing.” Adams v. State, 123

P.3d 400, 2005 UT 62. Thus, the principle that merit

trumps timeliness extends beyond the Federal cir-

cuit, giving national impact to that principle that

certainly should be applied to the within case.

1]

D. The United States Court Of Appeals For The Federal

Circuit Has Failed To Follow Its Own Precedents, Re-

sulting In An Unjust Dismissal Of An Appeal On Pro-

cedural Grounds, Depriving Plaintiff Of His Fifth

Amendment Right To Due Process.

In each of the above paragraphs A through C, the

Court came down on the side of granting an appel-

lant the broadest possible latitude when cxamining

the reasons for an untimely appeal filing. This ap-

proach is entirely consistent with the Fifth Amend-

ment to the U.S. Constitution, which states simply

that “No person shall...be deprived of life, liberty, or

property, without due process of law....”

In the within case, however, the Court ignored its

earlier decisions, and affirmed the Board’s determ1-

nation that Petitioner had “...failed to demonstrate

that his appeal was timely filed or that good cause

existed for thu delay.” (App. A-14)

As a consequence of the Board’s decision and the

Court’s affirmation of that decision, Petitioner has

not had his appeal of the Agency determination

heard on its merits, and has, therefore, been de-

prived of his constitutional right to due process.

CONCLUSION

Petitioner was discharged for cause by the Agency,

and simultaneously charged with criminal conduct

related to that discharge. He saw these matters as

related, and mistakenly believed he had 30 days fol-

lowing finalizing of the criminal charges to file his

appeal of the discharge to the Board.

The Board dismissed his appeal as untimely in di

rect contradiction of its own rulings in similar cases,

and subsequently denied his Petition for Review. The

Court affirmed the Board’s dismissal in direct con-

tradiction of its own precedents in similar cases.

Consequently, Petitioner has not had his case

heard at any level on its merits, a clear, unequivocal

violation of his constitutional right to due process

For all the reasons stated above, and in the inter-

est of equity and justice, Petitioner seeks a reversal

of the Court’s affirmation of the Board’s decision to

dismiss his appeal for untimely filing, and that his

appeal be remanded to the Board for consideration

on its merits.

Respectfully submitted,

ALEX M. GRIJALVA

By bey Counsel of Record

LA for fle

LINDA ROSE FESSLER, ESQ

LAW OFFICES OF LINDA ROSE FESSLER

234 S Figueroa St, Ste 541

LOS ANGELES CA 90012

(213) 617-8684: Fax (866) 492-1546

Email: LFess69012@aol.com

APPENDIX

Page

Federal Circuit Court of Appeals Judgment ........ A-14

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MSPB’s Acknowledgment Order....................02.0008 A-30

Petitioner’s Appeal to the MSPB (Form 185-1) ....A-40

Petitioner’s Appeal to the MSPB (Form 185-2)....A-41

Petitioner’s Response to Timeliness Issue............. A-44

Petitioner’s Petition for Review of MSPB

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Petitioner’s Unemployment Benefits

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APPENDIX

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the

Federal Circuit

2008-3249

ALEX M. GRIJALVA,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

Petition for review of the Merit Systems Protection

Board in SF 0752070815-I-1.

DECIDED: January 12, 2009

Before LOURIE., BRYSON, and GAJARSA,

Circuit Judges.

PER CURIAM.

DECISION

Alex M. Grijalva challenges the decision of the

Merit Systems Protection Board dismissing his peti-

tion for review as untimely filed. We affirm.

BACKGROUND

Mr. Grijalva was a maintenance mechanic with

the Department of Homeland Security at the United

States Coast Guard Integrated Support Command in

A-14

APPENDIX

San Pedro, California. Mr. Grijalva’s responsibilities

included supervising inmates from the Federal Cor-

rectional Institution on Terminal Island, California,

who were assigned to perform maintenance and re-

pair duties at the Integrated Support Command as

part of an inmate labor program. On June 19, 2007,

the agency issued a notice of decision removing Mr.

Grialva from his position for aiding in the smuggling

of prohibited items to Terminal Island inmates in

exchange for money. The letter informed Mr. Grijalva

of his right to appeal the decision to the Board within

30 days of his effective removal date of June 25,

2007, or within 30 days of his receipt of the removal

decision. Mr. Grijalva filed an appeal with the Board

on September 11, 2007.

In an acknowledgment order dated September

17, 2007, the administrative judge assigned to the

case notified Mr. Grijalva that his appeal appeared to

be untimely and advised Mr. Grijalva to respond

with evidence showing that his appeal was timely

filed or that good cause excused the filing delay. Al-

though Mr. Grijalva filed a response to that order on

September 21, 2007, his response did not address the

timeliness issue. On September 26, 2007, Mr. Gri-

jalva submitted a second response, in which he asked

that the untimeliness of his appeal be excused be-

cause he had waited to appeal until after he received

notice from the U.S. Attorneys office regarding the

completion of its criminal investigation relating to

his actions. Mr. Grijalva explained that he had filed

his appeal with the Board after learning that he was

being charged with a misdemeanor rather than a fe-

lony and after signing a plea agreement on Septem-

ber 13, 2007.

On November 26, 2007, the administrative judge

dismissed Mr. Grijalva’s appeal as untimely filed.

A-15

APPENDIX

Mr. Grijalva then filed a petition for review with the

full Board in which he again explained that he had

incorrectly believed that he could not file his appeal

of the agency’s removal decision until he knew

whether the U.S. Attorney intended to charge him

with a felony or misdemeanor. The full Board denied

Mr. Grijalva’s petition for review, and Mr. Grialva

then petitioned for review by this court.

DISCUSSION

Board regulations provide that an appeal of an

agency decision must be filed within 30 days of the

effective date of the decision or within 30 days of the

date that the appellant received the agency’s deci-

sion, whichever is later. 5 C.F.R. §1201.22(b) (1). The

Board can waive the time limit if the appellant shows

good cause for the delay. Id. §1201.22(c). Whether the

appellant’s showing of good cause is sufficient to jus-

tify waiving the time limit “is a matter committed to

the Board’s discretion and this court will not substi-

tute its own judgment for that of the Board.” Men-

doza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.

Cir. 1992) (en banc).

Because the agency’s decision to remove Mr.

Grijalva became effective on June 25, 2007, Mr. Gri-

jalva’s appeal on September 11, 2007, was 48 days

late. The administrative judge found that the consi-

derable length of the delay militated against waiving

the time limit. The administrative judge further

found that the agency's removal notice clearly ex-

plained the time limit for appealing the removal de-

cision The notice explained that Mr. Grijalva had

the right to appeal the agency’s decision so long as he

filed his appeal within 30 calendar days of the effec-

tive date of removal or 30 calendar days after he re-

A-16

APPENDIX

ceived the decision. Mr. Grijalva asserts that the

administrative judge should have excused his delay

because he thought that the 30-day time limit did not

commence until he learned whether the U.S. Attor-

ney was going to charge him with a misdemeanor or

a felony. The administrative judge found that Mr.

Grijalva’s mistaken belief regarding the relevance of

the criminal investigation did not constitute a cir-

cumstance beyond Mr. Grijalva’s control that affected

his ability to file an appeal in a timely manner.

Therefore, the administrative judge concluded that

Mr. Grijalva failed to show good cause for the delay.

Mr. Grijalva argues that he gave a “reasonable

excuse for the delay,” and that the administrative

judge was therefore required to forgive his untimely

filing “absent a showing of substantial prejudice to

the agency caused by the delay in filing.” Walls v.

Merit Sys. Prot. Bd. 29 F.3d 1578, 1582 (Fed. Cir.

1994). To establish good cause or a reasonable

excuse for a delay, however, an appellant must show

that he exercised due diligence or ordinary prudence

under the circumstances. Ceja v. United States, 710

F.2d 812, 814 (Fed. Cir. 1983); Phillips v. U.S. Postal

Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982). In this

case, the agency’s removal notice contained a plain

and unambiguous statement that the 30-day time

limit began on the date the decision became effec-

tive. See Stahl v. Merit. Sys. Prot. Bd., 83 F.3d 409,

412 (Fed. Cir. 1996). The notice contained nothing to

suggest that the time limit would not start to run

until the U.S. Attorney made a charging decision in

the criminal proceeding, or until that proceeding

was completed. Under these circumstances, we hold

that the Board did not abuse its discretion in con-

cluding that Mr. Grijalva failed to show that he ex-

ercised ordinary prudence justifying waiver of the

A-17

APPENDIX

filing deadline.

In a case involving a delay in filing a Board ap-

peal, the appellant has the initial burden of showing

a reasonable excuse for the delay, and the agency is

required to show prejudice only if the appellant has

made that showing of good cause, Womack v._ Me-

rit. Sys. Prot. Bd., 798 F.2d 453, 456 (Fed. Cir.

1986). Because the administrative judge concluded

that Mr. Grijalva failed to show good cause justify-

ing his untimely filing, the agency’s failure to sub-

mit evidence of substantial prejudice flowing from

that delay was immaterial.

Mr. Grialva further contends that “broad

equitable principles of justice” support a waiver of

the time limit, see Walls, 29 F.3d at 1582, and that

any doubt as to good cause must be resolved in his

favor, see Ceja, 710 F.2d at 814. However, the ad-

ministrative judge found that the agency decision

clearly notified Mr. Grijalva of the time limit to ap-

peal its decision, that the delay was considerable,

and that no circumstances beyond Mr. Grijalva’s

control affected his ability to file his appeal in a

timely manner. Those are appropriate factors for the

Board to consider when determining whether to

grant a good-cause waiver. See Walls, 29 F.3d at

1581. In hght of the administrative judge’s findings,

we see no reason to disturb the Board’s conclusion

that Mr. Grijalva failed to show good cause for his

untimely filing. We therefore affirm the dismissal of

his appeal on that ground.

APPENDIX

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

ALEX M. GRIJALVA, DOCKET NUMBER

Appellant, SF-0752-07-0815-I-1

2 2

DEPARTMENT OF DATE: November 26, 2007

HOMELAND SECURITY,

Agency.

Alex M. Grijalva, San Pedro, California, pro se. Paul

N. Janoff, Alameda, California, for the agency.

BEFORE

LuNell C. Anderson

Administrative Judge

INITIAL DECISION

The appellant filed an appeal of a decision by the

Department of Homeland Security to remove him

from his position as a Maintenance Mechanic,

WG-4749- 09, effective June 25, 2007. Initial Appeal

File (LAF), Tab 1. For the reasons set forth below, the

appeal is DISMISSED as untimely filed.

ANALYSIS AND FINDINGS

Background

The following facts have not been disputed by

the parties. On June 19, 2007, the agency issued a

letter of decision removing the appellant from his

position as a Maintenance Mechanic for providing

prohibited objects and for coordinating/aiding the

A-19

APPENDIX

smuggling of prohibited objects to inmates in

exchange for money at the Federal Correctional

Institution, Terminal Island, San Pedro, California.

IAF, Tab 1 and Tab 7, Exhibit 3. The agency’s

decision letter stated that the appellant’s removal

would be effective June 25, 2007. It further stated

that the appellant could appeal the agency’s decision

to the Merit Systems Protection Board, but such an

appeal must be filed within 30 calendar days of the

effective date of the decision. See Initial Appeal File

(AF), Tab 7, Exhibit 3. To be timely, the appellant

was required to file his appeal no later than July 25,

2007. The appellant subsequently filed the instant

appeal on September 11, 2007, 48 days late. See LAF,

Tab 1.

Because it appeared that the appellant's petition

for appeal was untimely filed, an acknowledgment

order was issued on September 17, 2007, advising

the appellant of the Board’s filing requirements and

ordering him to respond within 10 days with

evidence and/or argument showing that his appeal

was timely filed or that good cause existed for the

delay. See LAF, Tab 2.

The appellant filed a response September 21,

2007, which consisted of a copy of the Notice of

Proposed Removal, the June 13, 2007 decision letter

that was later rescinded, his written response to the

proposal and written declaration to Administrative

Law Judge J. Henley. IAF, Tab 4. The appellant did

not address the timeliness issue noted in the Board's

acknowledgment order. In a submission received

September 26, 2007, the appellant requested that his

tardiness for not meeting the 30-day time frame for

filing an appeal be excused because he did not get

word from the U.S. Attorney's office about the

completion of their investigation until September 11,

A-20

APPENDIX

2007. The appeliant goes on to state that he met with

his attorney to sign a plea agreement on September

13, 2007, and that once he knew he was not going to

be charged with a felony, he filed his appeal with the

Board.

The agency responded to the acknowledgment

order by filing a motion to dismiss the appeal as

untimely. See LAF, Tab 7. The agency also provided a

copy of the certified mail receipt showing that the

appellant received the decision letter on June 19,

2007. LAF, Tab 7, Exhibit 2. The appellant responded

by stating that the denial of his unemployment

benefits was reversed. LAF, Tabs 6 and 8.

The appellant has not shown good cause for the

untimely filing of his appeal.

It is the appel'ant’s burden to prove, by a

preponderance of the evidence, that his appeal is

timely filed. See 5 C.F.R. § 1201.56(a)(2)(u). Under 5

C.F.R. § 1201.22(b), appeals to the Board must be

filed no later than 30 days after the effective date of

the action being appealed, or 30 days after the date

of receipt of the agency’s decision, whichever is later.

An administrative judge may waive the requirement

for timely filing upon a showing of “good cause.” See 5

C.F.R. § 1201.12. Factors for consideration by an

administrative judge in determining good cause

include the following: the length of the delay;

whether the appellant was notified of the time limit

or was otherwise aware of it; the existence of

circumstances beyond the control of the appellant

which affected his ability to comply with the time

limits; and the degree to which negligence by the

appellant has been shown to be present or absent.

See Alonzo v. Department of the Air Force, 4 M.S.P.R.

180, 184 (1980).

A-2]

APPENDIX

Based on the evidence of record, I find that the

appellant has failed to show that his appeal was

timely filed or that good cause existed for the delay.

The appellant's initial contact with the Board

indicates that it was filed 48 days late and I find that

a 48-day delay is considerable and weighs against a

finding that the Board’s filing deadline should be

waived. See Simon v. Department of Veterans Affairs,

65 M.S.P.R. 176, 180-181 (1994) (Board refuses to

excuse even a one-day delay in filing where good

cause for the delay is not shown), review dismissed,

52 F.3d 343 (Fed. Cir. 1995) (Table). I also find that

the agency’ removal notice clearly informed the

appellant that his appeal must be filed no later than

30 calendar days after the effective date of his

removal. See Stahl v. Merit Systems Protection

Board, 83 F.3d 409, 412 (Fed. Cir. 1996) (Federal!

Circuit affirms dismissal of untimely appeal where

agency’s decision letter clearly informed employee of

time limits for filing Board appeal). Finally, although

the appellant appears to imply that he was waiting

on the completion of a criminal investigation that

resulted in a misdemeanor charge as opposed to a

felony, the appellant has failed to present any

evidence of circumstances beyond his control which

affected his ability to file in a timely manner.

Accordingly, I find that the appellant has failed

to demonstrate that his appeal was timely filed or

that good cause existed for the delay. The agency’s

motion to dismiss this appeal as untimely filed is

GRANTED

APPENDIX

DECISION

The appeal is DISMISSED.

FOR THE BOARD: /s/ LuNell C. Anderson

LuNell C. Anderson

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on

December 31, 2007, unless a petition for review is

filed by that date or the Board reopens the case on its

own motion. This is an important date because it is

usually the last day on which you can file a petition

for review with the Board. However, if you prove that

you received this initial decision more than 5 days

after the date of issuance, you may file a petition for

review within 30 days after the date you actually

receive the initial decision. You must establish the

date on which you received it. The date on which the

initial decision becomes final also controls when you

can file a petition for review with the Court of

Appeals for the Federal Circuit. The paragraphs that

follow tell you how and when to file with the Board or

the federal court. These instructions are important

because if you wish to file a petition, you must file it

within the proper time period.

A-23

APPENDIX

BOARD REVIEW

You may request Board review of this iitial

decision by filing a petition for review. Your petition,

with supporting evidence and argument, must be

filed with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.,

Washington, DC 20419

A petition for review may be filed by mail, facsimile

(fax), personal or commercial delivery, or electronic

filing. A petition for review submitted by electronic

filing must comply with the requirements of 5 C.F.R.

§ 1201.14, and may only be accomplished at the

Board's e-Appeal website (https://e-appeal.mspb.

gov).

If you file a petition for review, the Board will

obtain the record in_ your case from. the

administrative judge and you should not submit

anything to the Board that is already part of the

record. Your petition must be filed with the Clerk of

the Board no later than the date this initial decision

becomes final, or if this initial decision is received by

you more than 5 days after the date of issuance, 30

days after the date you actually receive the initial

decision. If you claim that you received this decision

more than 5 days after its issuance, you have the

burden to prove to the Board the date of receipt. You

may meet your burden by filing evidence and

argument, sworn or under penalty of perjury (see 5

C.F.R. Part 1201, Appendix 4) to support your claim.

The date of filing by mail is determined by the

postmark date. The date of filing by electronic filing

is the date of submission. The date of filing by

personal delivery is the date on which the Board

A-24

APPENDIX

receives the document. The date of filing by

commercial delivery is the date the document was

delivered to the commercial delivery service. Your

petition may be rejected and returned to you if you

fail to provide a statement of how you served your

petition on the other party. See 5 C.F.R. § 1201.4()).

JUDICIAL REVIEW

If you are dissatisfied with the Board's final

decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before

this decision becomes final. To be timely, your

petition must be received by the court no later than

60 calendar days after the date this initial decision

becomes final.

If you need further information about your right

to appeal this decision to court, you should refer to

the federal law that gives you this right. It 1s found

in Title 5 of the United States Code, section 7703 (5

U.S.C. § 7703). You may read this law, as well as

review the Board’s regulations and other related

material, at our website, http://www.mspb.gov.

Additional information is avaliable at the court's

website, http://fedcir.gov/contents.html. Of particular

relevance is the court's "Guide for Pro Se Petitioners

and Appellants." which is contained within the

court's Rules of Practice, and Forms 5, 6, and 11.

APPENDIX

NOTICE TO AGENCY/AINTERVENOR

The agency or intervenor may file a petition for

review of this initial decision in accordance with the

Board's regulations.

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was

(were) sent as indicated this day to each of the

following:

Appellant

Electronic Mail Alex M. Grijalva

727 West 15th Street

San Pedro, CA 90731

Agency Representative

U.S. Mail Paul N. Janoff

Department of

Homeland Security

Coast Guard Island

MLCPAC

Building 54A

Alameda, CA 94501

November 26, 2007 /s/ Judy Mattias

Judy Mattias

Paralegal Specialist

APPENDIX

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALEX M. GRIJALVA, DOCKET NUMBER

Appellant, SF-0752-07-0815-I-1

¥

DEPARTMENT OF DATE: March 21, 2008

HOMELAND SECURITY,

Agency.

Linda R. Fessler, Esquire, Los Angeles, California,

for the appellant.

Paul N. Janoff, Alameda, California, for the agency.

BEFORE

Neil A. G. McPhie, Chairman

Mary M. Rose, Vice Chairman

FINAL ORDER

The appellant has Filed a petition for review in

this case asking us to reconsider the initial decision

issued by the administrative judge. We grant peti-

tions such as this one only when significant new evi-

dence is presented to us that was not available for

consideration earlier or when the administrative

judge made an error interpreting a law or regulation.

The regulation that establishes this standard of re-

view is found in Title 5 of the Code of Federal Regu-

lations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in thiis appeal,

we conclude that there is no new, previously un-

A-27

APPENDIX

available, evidence and that the administrative judge

made no error in law or regulation that affects the

outcome. 5 C.F.R. § 1201.115(d). Therefore, we DE-

NY the petition for review. The initial decision of the

administrative judge is final. This is the Board's final

decision in this matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States

Court of Appeals for the Federal Circuit to review

this final decision. You must submit your request to

the court at the following add: ess:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 60 calendar days after your receipt of this

order. If you have a representative in this case, and

your representative receives this order before you do,

then you must file with the court no later than 60

calendar days after receipt by your representative. If

you choose to file, be very careful to file on time. The

court has held that normally it does not have the

authority to waive this statutory deadline and that

Filings that do not comply with the deadline must be

dismissed. See Pinat v. Office of Personnel Manage-

ment, 931 F.2d 1544 (Fed. Cir. 1991).

If you need Further information about your right

to appeal this decision to court, you should refer to

the tederal law that gives you this right. It is found

in Title 5 of the United States Code, section 7703 (5

A-28

APPENDIX

U.S.C. § 7703). You may read this law, as well as re-

view the Board's regulations and other related ma-

terlai, at our website, http://www.mspb.gov. Addi-

tional information is available at the court's website,

www.cafc.uscourts.gov. Of particular relevance is the

court's "Guide for Pro Se Petitioners and Appellants,"

which is contained within the court's Rules of Prac-

tice, and Forms 5, 6, and 11.

FOR THE BOARD: /s/ William D. Spencer

Wilham D. Spencer

Clerk of the Board

Washington, D.C.

A-29

APPENDIX

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

ALEX M. GRIJALVA, DOCKET NUMBER

Appellant, SF-0752-07-0815-1-1

Vv.

DEPARTMENT OF DATE: November 17, 2007

HOMELAND SECURITY,

Agency.

ACKNOWLEDGMENT ORDER.

This office has received the appellant’s petition

for appeal. A copy of the appeal is being sent to the

agency with this Order. I am the administrative

judge assigned to this appeal.

J ORDER the parties to follow the procedures sct

out in the separate notices below. If any party fails to

follow my orders or the Board’s regulations, I may

impose sanctions pursuant. to 5 C.F.R. § 1201.43. If

either party has a question regarding any aspect of

the case processing instructions set forth in this or-

der, he or she may seek clarification from me at the

phone number listed at the end of this order.

NOTICE TO APPELLANT

INTRODUCTION

If your appeal is timely filed, and within the

Board’s jurisdiction you have the right to a hearing

on the merits of your case. If you requested a hear-

ing, I. will schedule a hearing for you. If you did not

request a hearing, you have 10 calendar days from

A-30

APPENDIX

the date of this Order te tile a written request for

one. If you do not request a hearing, you waive your

right to one. In that event, you and the agency will be

given an opportunity to make written submissions

before the record on your appeal closes.

TIMELINESS

Generally, you must file an appeal with the Board

no later than 30 calendar days after the effective

date, if any, of the action you are challenging, or 30

calendar days after the date you receive the agency’s

decision, whichever is later, 5 CEP,. § 1201.22(b).

Under 5 C.F.R. §1201.41(1), the filing date for each of

the, ways in which an appeal can be filed is: Mail —

the postmark date, but if there is no legible postmark

date, mailing is presumed to have been five business

days before receipt; Personal Delivery — the date we

receive the appeal; Fax — the date of the fax; Com-

mercial Overnight Delivery — the date the document

was delivered to the commercial overnight delivery

service; Electronic Mail — the date on which the clec-

tronic mad is sent. It appears that, the filing pe-

riod in this case began on June 25, 2007, and

that your appeal was filed by Electronic Mail

on September 11, 2007. It therefore appears

that your appeal was Iliad approximately 2 %

months late. Because your appeal appears to have

been filed after the tune limit under these rules, it

may be untimely.

If you and the agency agreed in writing to partic-

ipate in an alternative dispute resolution process be-

fore filing your appeal, the than limit for filing your

appeal is extended for an additional 30 calendar

days, for a total of 60 calendar days. In such a case,

your response to this Order must include a copy of

the written agreement.

A-3i

APPENDIX

Further, there is an exception to the 30-day filing

rule of 5 C.F.R. § 1201.22(b), set out in 5 C.F.R. §

1201.154(h). Pursuant to this provision, an appellant

who was subject to an action that is appealable to the

Board and who filed a timely formal discrimination

complaint with the agency may file an appeal (1)

within 30 days after receipt of the agency resolution

or final decision on the complaint or, (2) at any time

after the expiration of 120 calendar days if the agen-

cy has not resolved the matter or issued a final deci-

sion within the 120-day period.

Before the Board will consider any other issue

raised. by your appeal, you must show by preponde-

rant evidence that the appeal. was filed on. time or

that good cause exists for the delay in filing. Prepon-

derant evidence is the degree of relevant evidence

that a reasonable person, considering the record as it

whole, would need to find that a contested fact is

more likely true than untrue. 5 C.F.R. § 1201.56(c)

(2). In other words, you must show that it is more

likely than not that your appeal was filed on time or

that good cause exists for the delay.

Accordingly, if you claim that you filed your ap-

peal on time under any of the filing rules listed

above, I ORDER. you to file evidence and/or argu-

ment showing that you did so. You must provide all

of the details explaining your actions concerning the

filing. If the apparent untimeliness of your appeal is

due to your late receipt of the decision you are ap-

pealing, you must also submit evidence and. argu-

ment as to the date you received it. If you have postal

receipts or other proof of mailing, you should send a

legible copy of them with your response.

If you did. not file your appeal on time, 1 ORDER

you file evidence and/or argument showing that good

cause exists for the delay in filing. To show that.

A-32

APPENDIX

there was good cause for a delay in -filing, you must

show that, you acted reasonably and with due dili-

gence under the particular circumstances of your

case. The factors the Board will look at to determine

whether you acted reasonably include, but are not

limited to: (1) the length of the delay; (2) whether you

were notified of the time limit or were otherwise

aware of it; (3) the existence of circumstances beyond

your control which affected your ability to comply

with the time limit, and the possibility of negligence

on your part; (.4) circumstances which show 11 t any

neglect On so t part was excusable; (5) whether there

was unavoidable casualty or misfortune that affected

your ability to timely file your appeal; and (6)

whether not applying the time limit to you would

harm the agency. In your response to this Order ad-

dressing the timeliness issue, be as specific as possi-

ble by giving all of the details. You should also in-

clude any evidence that supports the reason for your

delay.

If an illness prevented you from filing your appeal

within the time limit, you must identify the time pe-

riod during which you suffered from the illness, sub-

mit medical evidence and any other supporting evi-

dence showing that you suffered from the illness

during the relevant time period, and explain how the

illness prevented you from filing your appeal on time

or requesting an extension of time to file. If medical

evidence is not available, you must submit other

supporting evidence and explain why medical evi-

dence is not as available.

Any explanation of the reason for a late appeal

must also address why you could not have filed a

timely request for an extension of the filing time lim-

it.

Your response to this Order must be in the form

A-33

APPENDIX

of an affidavit, sworn statement, or declaration under

penalty of perjury, 28 U.S.C. § 1746, a form for which

is found in the. Board's regulations at 5 C.F.R. Part

1201, Appendix IV. Although there are limited cir-

cumstances in which a hearing may be held on the

question of the timeliness of an appeal, you should

submit all evidence and argument you wish me to

consider on that issue, and not withhold, anything in

expectation that a hearing may be held. Your sub-

mission must he filed within 10 calendar days of the

date of this Order, and you must serve a copy of it on

the agency at the same time.

ORDER TO THE AGENCY

The agency is ORDERED to file any evidence that

it has on. the timeliness issue within. 20 calendar

days of the date of this Order, and may submit ar-

gument as well.

KREKK

Unless tell the parties otherwise, the record on

the timeliness issue will close on the date the agen-

cy’s response is due. That means I will not accept any

more evidence or argument on that issue that is filed

after that date unless the party submitting it shows

it was not readily available prior to the close of the

record. 5 C.F.R. § 1201.58(c).

DESIGNATION OF REPRESENTATIVE

You may name a representative. If you already

have a representative, you must fill out the enclosed

“Designation of .Representative” form and file it with

the Board and with the agency within 10 calendar

days of the date of this Order unless you have in-

cluded your representative’s name, address, tele-

A-34

APPENDIX

phone number, and signature in your appeal. If your

representative has filed the appeal tor you and you

have not personally signed the appeal or submitted

signed “Designation of Representative” form, you al-

so must file a signed “Designation of Representative

Form” with the Board and with the agency within 10

calendar days of the date of this Order. If you. name

a representative after receiving this Order, fill out

the enclosed “Designation of Representative” form

and file it with the Board and the agency imme-

diately after obtaining your representative.

You must immediately notify the Board and the

agency in writing of any changes in the name, ad-

dress, or telephone, number of your designated rep-

resentative.

If you register as an e-filer (see information be-

low), you can one electronic filing to file a Designa-

tion of Representative, or to notify the Board of a

change in contact information.

SETTLEMENT

I have directed the agency to contact you within

35 calendar days of the date of this Order to define

the issues, agree to stipulations, and discuss the pos-

sibility of settlement. I am available to assist in the

discussions. You must discuss concrete, specific set-

tlement proposals with the agency unless either par-

ty concludes in good faith that no compromise of any

kind is possible. You must also be prepared to dis-

cuss with me the status of your settlement discus-

sions,

If you agree to settle your appeal, and you enter

the agreement into the record, the Board will retain

the authority to enforce its terms. However, uf you do

not enter the agreement into the record, the Board

will have no authority to enforce the agreement.

A-35

APPENDIX

DISCOVERY

Discovery is the procedure you may use to learn of

any facts, documents, or other evidence the agency

has that may be helpful to your case. If you wish to

engage in discovery, initial requests or motions must

he filed within 25 calendar days of the date of this

Order. Responses to initial discovery requests must

be filed promptly but no later than 20 days after the

date of service of the other party's discovery request

or the MSPB order. Unless you are filing a motion to

compel, you must not submit vour discovery requests

and responses to the Board. If you do, they will be

rejected and returned to you. The procedures used for

discovery are at 5 C.F.R. §§1201.71-.85.

It is the policy of the Beard to decide an appeal

within 120 calendar days of receipt. The Board ex-

pects all parties to assist in the expeditious

processing of this case by honoring requests for rele-

vant documents and producing material witnesses

without additional Board intervention.

RESPONSE TO MOTIONS

You may file a response or objection to any motion

filed by the agency. Unless otherwise specified by me

or the Board’s regulations, your response or objection

must be filed with this office and served upon the

agency within 10 calendar days of the date that ap-

pears on the agency’s certificate of service. I will re-

ject any untimely response or objection unless you

show good cause for the delay in filing.

GENERAL INSTRUCTIONS

Pursuant to 5 C.F.R. 1201.26, all submissions

filed with the card must be:

(1) Legible and on 8 1/2- by 11-inch paper;

(2) All documents within a tab must have new

A-36

(3)

(4)

(5)

APPENDIX

page numbers (by hand if necessary) so that

each document, within each tab, is

re-numbered, from the first page of the first

document to the last page of the last docu-

ment. This will. allow for specific page ref-

erences to the record, by tab and by page

number within a tab. The new page numbers

should be placed in the bottom right-hand

margin of each page. If some pages within a

tab are already numbered in the bot-

tom-right margin, parties should place the

new page numbers .just to the right of the

original page numbers.

Served upon (personally delivered, mailed or

faxed) opposing parties and their represent-

atives;

Filed by the date set by me or the Board’s

regulations. The date of filing is he date

your submission is postmarked, faxed, or the

date of receipt if you personally deliver it to

the Board’s regional! office; and

Accompanied by a certificate of service stat-

ing (a) the names and addresses of the par-

ties served; (b) whether service was by mail,

fax, or by personal delivery; and (c) the date

of service.

A certificate of service 1s attached to this Order

and lists the names and addresses of the parties who

must be served in this ease. The attached :certificate

of service constitutes a model which you may follow

in preparing your own certificate of service. The

Board may reject a submission that does not have a

certificate of service. If you register as an e-filer, a

certificate of service will be prepared automatically

as part of the pleading you file online.

Extensions of filing dates will only be granted if

A-37

APPENDIX

requested in writing and if good cause is shown. A

continuance of a hearing date will be granted only if

requested in writing and if you are able to show ex-

traordinary circumstances.

ELECTRONIC FILING

Pursuant to 5 C.F.R. § 1201.14, a party or repre-

sentative who registers as an e-filer may file and re-

ceive documents in electronic form. Such registration

and filing can be done at the Board’s e-Appeal site

(https://e-appeal.mspb.gov). More information about

electronic tiling is attached to this order.

REGULATIONS

For more detailed information on these proce-

dures, you should refer to the Board’s regulations in

5 C.F.R. Part 1201. The regulations are available for

review in agency personnel offices, law libraries,

some large public libraries, and at the Board’s web-

site (http://www.mspb.gov/title5. html)

NOTICE TO AGENCY/INTERVENOR

AGENCY RESPONSE

I ORDER the agency to read, comply with, and/or

respond to any and all portions of the “Notice to Ap-

pellant” which are applicable to it. 1 also ORDER the

agency to serve me, appellant, and appellant’s rep-

resentative (if applicable), with the material listed on

the enclosed schedule and any other information ‘re-

quired by 5 C.F.R. § 1201.25 within 20 calendar days

of the date of this Order.

DESIGNATION OF REPRESENTATIVE

The agency must designate a representative. I

ORDER the agency to file the name, address, and

A-38

APPENDIX

telephone number of the person authorized to act for

the agency on the enclosed “Designation of Repre-

sentative” form within 20 calendar days of the date of

this Order. The representative must have authority

to settle this appeal or be able to directly reach

someone with that authority on short notice.

SETTLEMENT

I DIRECT the agency to contact. the appellant

within 35 calendar days of the date of this Order to

define the issues, agree to stipulations, and discuss

the possibility of settlement. J am available to assist

in the discussions. The agency must discuss concrete,

specific settlement proposals with the appellant, un-

less either party concludes in good faith that no

compromise of any kind is possible. The agency must

also he prepared to discuss with me the status of its

settlement discussions.

FOR THE BOARD:

LuNell Anderson

Administrative judge Western

Regional Office

201 Mission Street, Suite 2310

San Francisco, CA 94105-1831

4 Is) 904-6772

(415) 904-0580

V/TDD (800) 877-8339

Enclosures

A-39

APPENDIX

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FORM 185-1

Appeal Form - Appellant and Agency Informa-

tion

Quid

. Name: Grijalva, Alex M.

2. Address: 727 W 15‘ St, San Pedro, CA 90731,

USA

3. Telephone numbers and email address:

Home: (310) 519-0832; Work: (310) 732-3585

email: grijmald54@sbcglobal.net

. Do you wish to designate a representative: No

5. Name and address of the Agency that made the

decisions or took the action you are appealing:

Department of Homeland Security

U.S. Coast Guard

1001 S Seaside Ave

San Pedro, CA 90731

6. Federal employment status at the time of the de-

cision: Permanent

Type of appointment: N/A

8. Occupational series, position title, grade and duty

station at time of decision:

Occupational series: WG-4749; Title: Maintenance

Grade: WG-9; Duty Station: ISC San Pedro

9. Are you entitled to veteran’s preferences? Yes

10.Length of government service: 24 yrs 6 mos

11.Were you serving a probationary of trial period at

the time of the decision? No

12.Do you want a hearing? Yes

13.Do you elect to E-file? Yes

14.1 certify that all the statements made in this form

and ali attached forms are true, complete, and correct

to the best of my knowledge and belief.

ALEX MALDONADO GRIJALVA, Appellant

A-40

—

=

APPENDIX

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FORM 185-2

Appeal of Agency Personnel Action or Deci-

sion (Non-retirement)

Name: Grijalva, Alex M.

Description of personne] action: Removal (Termi-

nation after probationary period)

. Date you received agency’s proposal letter:

05/21/2007

. Date you received agency’s final decision letter:

06/19/2007

Effective date of the agency action: 06/25/2007

Did you and the agency attempt ADR? No

Explain why you think the agency was wrong in

takinz this action or making this decision:

I was terminated for giving inmates contraband

(Prohibited Objects). First t would like to say

that when the investigation first began I re-

quested union representation. It was never

granted. However, I was still very honest & coo-

perated with authorities. I was alone in this &

was very much intimidated by all questioning. I

could not afford an attorney. I was not alone in

this as far as giving inmates contraband. Every-

one in the DC Shop where we all worked together

gave these men prohibited objects, including Mr.

Daniel Rangel DC Shop supervisor. Food & mag-

A-41

~l

APPENDIX

azines were also prohibited. Mr Rangel would of-

ten turn a blind eye to all that was going on in his

shop. We would collect monies from shop mem-

bers to buy the inmates cake & ice cream on

their birthdays. We would also collect & sell

aluminum & plastic bottles. With this money

we would have DC Shop parties. The inmates

were always invited. They would help with the

food preparations. Inmates would also share

their prison food with everyone including DC

Shop supervisor Mr. Rangel. Other Shop supervi-

sors were doing the same thing with their in-

mates. Myself & one other Coastie were honest

about what was going on, P.O. Deland. I was on

lite duty due to a neck surgery & became very de-

pendent on these men to help me do my job. My

neuro-surgeon Mahomar said they’re just making

excuses because of your disability. My newly ap-

pointed attorney said what I did was not a felony

but a Minor Misdemeanor, | believe I was dis-

criminated against because of my disabili-

ty/race. ] was singled out of many & terminated.

What action would you like the Board to take in

this case?

Il asked for reconsideration on the termination,

because I was doing my job without too many

problems. My restrictions included no heavy lift-

ing, but I met all my requirements on my evals. I

have 24 % good years with four military agencies,

2 years Army, 4 years Air Force, 8 years Navy,

and 12 years with the Coast Guard. 22 years were

in the same capacity, building maintenance. I’ve

never been in any kind of trouble. I made a mis-

take — my first and only mistake. I admitted to it,

A-42

APPENDIX

and cooperated with everyone. I believe this could

have been handled in a much different manner,

with rehabilitation, suspension, or a fine. But

termination is too much punishment. It destroyed

me. They only honored my disability restrictions

for about the first 3 weeks | returned to work.

8. Have you filed a grievance under a negotiated

grievance procedure? No

9. If yes, on what date? N/A

10. If yes, has a decision been issued? N/A

A-43

APPENDIX

RESPONSE TO TIMELINESS ISSUE

ALEX M. GRIJALVA v DEPARTMENT OF HO-

MELAND SECURITY

Docket # SF-0752-07-0815-I-1

Response to TIMELINESS. THE 30 DAY TIME

FRAME WAS NOT MET.

Dated 9/17/2007

Summary Page

Case Title: ALEX M. GRIJALVA v DEPARTMENT

OF HOMELAND SECURITY

Docket Number: SF-0752-07-0815-I-1

Pleading title: Response to TIMELINESS. THE 30

DAY TIME FRAME WAS NOT

MET.

Dated 9/17/2007

Filer’s name: Alex M. Grijalva

Filer’s pleading role: Appellant

Details about the supporting documentation:

N/A

1. Would you like to enter the text online? Online

2. Your response to the notice or order:

Please excuse my tardiness for not meeting the 30

day time frame for filing an appeal. I didn’t get

word from the U.S. Attorney’s office about the

completion of their investigation until 09/11/2007/

Then I met with my attorney 09/13/2007 to sign a

A-44

APPENDIX

plea agreement. I did not know how the U.S. At-

torney’s Office investigation was going to come out.

Once they told me I was not being charged with a

felony, and only a minor misdemeanor, I filed my

appeal. I sent a coy of the plea agreement by fax on

09/17/2007 to the MSPB.

Does your pleading assert facts you know from

your personal knowledge? Yes.

Do you declare under penalty of perjury, that the

facts stated in this pleading are true and correct?

Yes

APPENDIX

U.S. MERIT SYSTEMS PROTECTION BOARD

APPELLANT’S PETITION FOR REVIEW FORM

PLEASE COPY THE FOLLOWING FROM YOUR

DECISION:

CASE NAME: ALEX M. GRIJALVA, Appellant;

DEPARTMENT OF HOMELAND SECURITY,

Agency.

Docket No: SF-0752-07-0815-1-1-1

Initial or Addendum Decision Finality Date:

(See “Notice to Appellant” section of decision for

“finality” date)

INSTRUCTIONS FOR COMPLETING

PETITION FOR REVIEW FORM

The Board may grant your Petition for Review if you

show that:

1. the appeal was wrongly decided based on the

evidence already in the record;

2 there is new evidence, which was previously

unavailable despite your due diligence, that

supports a different outcome; or

3. errors in the way the appeals proceeding was

handled denied you the opportunity to fairly

present your Case.

-

If you decide to file a Petition for Review, you may

use this form although you are not required to do so.

If you use this form, please read the instructions

carefully... Before completing this form, you should

read the attached copy of the Board’s regulations at 5

C.F.R. § 1201.114 through 5 C.F.R. § 1201.120.

IT IS IMPORTANT TO FILE YOUR PETITION

ON OR BEFORE THE FINALITY DATE IN THE

A-46

APPENDIX

INITIAL OR ADDENDUM DECISION. IF YOU

DO NOT. THE BOARD MAY REFUSE TO

CONSIDER YOUR PETITION.

The date of filing is the date you mail (by U.S.

Mail or commercial overnight delivery), fax, or

hand-deliver your petition to the Board. If you

will be unable to file your Petition for Review

by the finality date, you must request an

extension of time from the Clerk of the Board

BEFORE THE FINALITY DATE. If your

Petition for Review is filed after the finality

date, you MUST complete Attachment B and

submit it with your Petition for Review.

YOU SHOULD NOT SUBMIT ANY EVIDENCE

OR PAPERS THAT WERE SUBMITTED TO

THE JUDGE BY YOU, BY YOUR

REPRESENTATIVES (IF ANY), OR BY THE

AGENCY. The Board will already have that

information when it considers your petition.

After you complete this form you should send

it, together with any attachments, by mail,

personal delivery, fax, or commercial overnight

delivery to:

The Clerk of the Board

U.S. Merit Systems Protection Board

5th Floor Mail Room

1615 M Street, NW

Washington, DC 20419

TELEPHONE NUMBER: (202) 653-7200 OR

(800) 209-8960

FAX NUMBER: (202) 653-7130

A-47

APPENDIX

You must also send a copy of the form and all of the

attachments to the agency and to any other party

listed on Attachment A, Certificate of Service, at the

addresses on the certificate. ACOMPLETED COPY

OF ATTACHMENT A MUST BE SENT TO THE

BOARD AND TO EACH PARTY TO WHOM YOU

SEND YOUR PETITION FOR REVIEW.

Please answer as many of the following questions as

best you can. DO NOT DELAY FILING THIS

PETITION BECAUSE YOU CANNOT ANSWER

SOME OF THE QUESTIONS. Your answers to these

questions will help the Board to decide whether to

grant your Petition for Review. You do not have to

answer "Yes" to every question for the Board to grant

your Petition for Review.

The Board is interested in what you believe were

errors that caused an incorrect result in your appeal,

or new evidence you have discovered that would lead

to a different result. If a particular question does not

relate to such matters, feel free to leave it blank.

Your answers should refer to the decision of the

judge or to specific evidence or documents that were

presented to the judge, if possible. If the

administrative judge dismissed your case because of

lack of jurisdiction or because your appeal was

untimely, you must only address those issues. The

other issues in your case will be addresscd later, if

the Board rules in your favor on the jurisdiction or

timeliness issues. If you do not have enough space on

the form to answer a question, or if you use a

computer to print your answers, you may attach

extra sheets. Please type or clearly print your

answers.

A-48

APPENDIX

NOTE: This form can be downloaded in HTML or

PDF format from the Board's Website. The

advantage of using an electronic form is that you are

able to fill in the requested information as a regular

document on your personal computer (PC). Before

you begin answering any of the questions, you should

save (download) the file to your PC's C drive. NOTE:

Once you have completed filling out the form (and

have saved it), you still must print out copies, sign

the form(s) in the appropriate spaces, and serve the

form on the Board and the other party(s) as

explained above.

QUESTIONS

1. Is this petition being filed on or before the

decision finality date? (See "Notice to Appellant"

section of the Initial or Addendum Decision for

"finality" date.) M@ YES 0 NO (TF YOUR ANSWER

IS NO, YOU MUST COMPLETE ATTACHMENT B

AND RETURN IT WITH THIS FORM.)

2. Have you been denied any procedures during

your appeal to the MSPB to which you believe you

were entitled? Examples of procedures include

holding a hearing, submitting evidence, and calling

witnesses. If so, what procedures were denied and

why do you believe you were entitles to them? Did

you raise this matter with the judge? Please describe

how not having this procedure has harmed you.

Appeal was dismissed because it was not timely filed.

The purpose of this entire review system is to ensure

that justice is accomplished, and that an accused gets

his chance to explain his actions and to make an

attempt to resolve the problem. From the beginning,

Mr. Grijalva found himself on the wrong side of

A-49

APPENDIX

everything that was happening. He had not willingly

and purposefully violated any law or procedure, but

was just doing what everyone else was doing. When it

turned out, however, that he had transgressed, he

cooperated fully with the authorities to solve the

situation. (See 4 below)

3. Do you have any documents or evidence that are

important to your appeal that were not filed with

the judge before the record closed? If so, you should

attach these documents and evidence. Explain why

you did not submit these documents or evidence to

the judge, and why it is important for the Board to

consider them. Explain why you believe that these

documents and evidence should change the result in

your case. (The Board will not normally consider

documents or evidence which were not submitted to

the judge unless you can show that the evidence did

not exist before the record closed or that you could

not have been reasonably expected to have found the

evidence before the record closed.)

Tab A. Plea Agreement with Government - may have

been submitted earlier, but we are not certain.

Mr. Grijalva thought this agreement had to be

in place before he filed his Appeal.

Tab B. Representation Agreement - Mr. Grijalva just

executed this Agreement to have

representation for this Petition.

4. Did the initial or addendum decision incorrectly

decide any important facts or fail to consider any

important facts that were presented to the judge’? If

so, describe what important facts were incorrectly

decided or were not considered. Explain why that

should change the result in your case.

A-50

APPENDIX

Initially, Mr. Grijalva thought he would be charged

with a felony, but ultimately the charge was reduced

to a misdemeanor. Mr. Grijalva did receive

notification that his appeal needed to be filed within

30 days, but with the criminal action in a state of

flux, he simply did not realize that that 30 day filing

obligation was still in effect. It was not a deliberate

error, nor was it done:for any nefarious purpose. It

happened for the same reason Mr. Grijalva got

involved with the original problem. He did not

completely understand the system, and had no one to

advise him on how he should proceed. (see 6 below)

5. Did the initial or addendum decision apply the

wrong law or apply the law incorrectly? If so, what

law should be applied and how”? For example, did

the decision fail to properly consider a specific law or

regulation or another case that has been decided by

a court or by the Board? If you answer "Yes," your

explanation should refer to the specific law,

regulation, or case. Explain how application of the

right law should change the result in your case.

[no response]

6. Are there other reasons why the initial or

addendum decision was wrong? If so, what are those

reasons?

Mr. Grijalva did not think he could file until he knew

whether he was betng charged with a felony or a

misdemeanor — the agency knows all these rules but

an employee does not, and to say that ignorance is not

an excuse is to forget that they do have a certain

obligation to protect the employees, not just to

rubber-stamp the government. In the interests of

Justice, the MSPB should hear Mr. Grijalva’s Appeal.

A-51

APPENDIX

Not to do so on a technicality — even one so clear as

this — would be an obvious miscarriage of justice. By

simply hearing the appeal, the MSPB will be

following the spirit of the law, which was written to

protect the interests of individuals who have fallen

afoul of the government’s many rules and regulations

7 What action {relief or remedy}do you want the

Merit Systems Protection Board to order in this

case? Why do you believe you are entitled to this

relief or remedy?

By ordering that Mr. Grijalva’s Appeal be heard, the

MSPB will allow equitable closure to happen in this

case.

/s/ Alex M. Grijalva

Signature of Appellant or

Non-Attorney Representative

Date Signed: 12/28/2007

Name of Appellant: Alex M. Grijalva

Represented by: Linda Rose Fessler, Esq

Address: 234 S Figueroa St, No 541

City, State and Zip Code: Los Angeles, CA 90012

Telephone Number:(213) 617-8684

Fax Number:(866) 492-1546

Email: LFess69012@aol.com

APPENDIX

Attachment A

YOU MUST COMPLETE THIS FORM AND

SUBMIT IT WITH YOUR PETITION FOR REVIEW

FORM.

CERTIFICATE OF SERVICE

I hereby CERTIFY that a copy of my Petition for

Review and attachments was Sent by: (select all that

apply)

M U.S. Mail, M1 FAX, 0 Personal delivery,

OC) Commercial overnight delivery, 0 Other:

to each of the following on 12/28/2007

If there is more than one name listed below and you

used different type of delivery, please write the type

used next to each name.

Office of the Clerk of the Board

Type of Delivery: Fax (202) 653-7130

1615 M Street, NW.

5th Floor Mail Room

Washington, DC 20419

AGENCY REPRESENTATIVE (Name and Address)

Type of Delivery: U.S. Mail

Name: Paul N. Janoff

Agency Name: Department of Homeland

Office or Other Security Coast Guard Island

Division: MLCPAC

Number and Building 54A

Street:

City, State & Zip Alameda, CA 94501

Code:

A-53

APPENDIX

OTHER PARTIES (IF THERE ARE ANY) Type of

Delivery:

Name:

Agency Name:

Office or Other Division: Number and Street: City:

State and Zip Code:

/s/ Linda Rose Fessler

(Signature)

Attachment B

YOU MUST COMPLETE AND SIGN THIS FORM

IF YOU ANSWERED “NO” TO QUESTION 1

MOTION TO ASK THE BOARD TO ACCEPT

FILING AS TIMELY OR TO SET ASIDE THE

DEADLINE

CASE NAME: Vv.

Docket Number:

l ask the Board to accept my document that

appeared to be filed after the Board’s deadline had

passed. I ask the Board to allow me to submit my

proof that the document was filed on time, or, I ask

the Board to set aside (waive) the deadline for filing

the document for the good cause (reason) shown

below. I have included an exact and detailed

description of the circumstances that caused the

document to be filed late. I have included documents

and/or other evidence that supports my request. I

also have stated the reasons that | did not ask the

Board, before the deadline, for more time to file the

document.

(NOTE: If you are claiming that your health has

A-54

APPENDIX

affected your ability to meet filing deadlines, you

must show that you suffered from an illness that

affected your ability to file on time. To establish that

a late filing was caused by an illness, you must:

4. Identify the time period during which you

suffered from the illness;

s Submit medical or other evidence showing

that you suffered from the illness during the

time since the initial decision was issued; and,

«. Explain how the illness prevented you from

filing your document on time or requesting an

extension of time.

DECLARATION

APPENDIX

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

2008-3249

ALEX M. GRIJALVA,

Petitioner,

Ve

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

APPELLANT’S COMBINED OPENING BRIEF &

APPENDIX

(CORRECTED)

Petition for review of the Merit Systems Protection

: Board in

SF0752070815-1-1.

LINDA ROSE FESSLER, ESQ. CA SBN 049417

LAW OFFICES OF.LINDA ROSE FESSLER

234 S Figueroa St, Ste 541

LOS ANGELES CA 90012

(213) 617-8684; Fax (866) 492-1546

Email: LFess69012@aol.com

APPENDIX

TABLE OF CONTENTS

CERTIFICATE OF INTEREST

gg eee

I. STATEMENT OF RELATED CASEG.............

II. JURISDICTIONAL STATEMENT .................

Ill. STATEMENT OF THE ISSUES .....................

IV. STATEMENT OF THE CASE.....................0006

V. STATEMENT OF THE FACTS...........00.000000...

VI. SUMMARY OF THE ARGUMENT.................

EI ooo. o cc ccccsncscsvccscccccscssccosecsesce

ccc... cssconcscccscccccccccccvccssccsscecesess

A. Board Policy Considerations Counsel

Against Dismissals For Untimely Filing

And Militate For Providing Employees

With A Hearing On The Merits Of Their

Neca cancnsisnencccrereccesevers

B. If The Employee Gives A Reasonable

Excuse For The Delay, Such Excuse Should

Be Accepted By The Presiding Official,

Absent A Showing Of Substantial Prejudice

To The Agency Caused By The Delay In

Nee sc scvccesversvectscscteceeseoens

C. Any Doubt About Whether Good Cause Has

Been Showr. Should Be Resolved In Favor

Of An Appellant. Good Cause Is An Elastic

Concept [Which] Entitles The Employee To

The Apphcation Of The Broad Equitable

Principles Of Justice And Good Conscience....

I nnn ss cnccnevecessnsvesconeccsccocccessoene

PROOF OF SERVICE

CERTIFICATE OF COMPLIANCE

APPENDIX INDEX

APPENDIX

TABLE OF AUTHORITIES

Cases

Adams v. State, 123 P.3d 400, 2005 UT 62............04.. 9

Ceja v. United States, 710 F.2d 812 (Fed. Cir.

Neen rs ccnektisinsesaecessens 6, 7

Phillips v. United States Postal Service, 695

Poe Pee ere, Car, 127287 TOSZ). ..........0.0.cccccccees 8

Pyles v. Merit Systems Protection Bd., 45 F.3d

A ME FOF FOE 6 occc scree issessevsecccescvessoes: 6

Walls v. Merit Systems Protection Bd., 29 F.3d

1578 (Fed. Cir. O7/ 26/1994) ccccccccccccccsscerscesees 4,5, 6

Young v. Department of Commerce, 737 F.2d

Pe A, MPT BOS BBE) cess ccscrccesesosccecccecccccccess 8

Yuni v. Merit Systems Protection Board, 784

re EE, CT PF LOO) oo .ccscsscscccsccscccesceses 7

A-58

APPENDIX

I. STATEMENT OF RELATED CASES

Appellant knows of no related cases filed in any

Federal District Court, District Court of Appeals, or

the Court of Appeals for the Federal Circuit.

II. JURISDICTIONAL STATEMENT

Appellant represents that the judgment of the

U.S. Merit Systems Protection Board (hereinafter the

“Board”) appealed from is final.

Ill. STATEMENT OF THE ISSUES

1. Whether the Board abused its discretion in

denying Appellant’s Petition for Review of the deci-

sion issued by the administrative judge to dismiss

Appellant’s Appeal of a decision by the Department

of Homeland Security, (hereinafter the “Agency”)

based on untimely filing of Appellant’s Appeal to the

administrative judge.

2. Whether the Board abused its discretion in

denying Appellant’s Petition for Review of the deci-

sion issued by the administrative judge based on pro-

cedural issues only, instead of on the merits of the

case.

IV. STATEMENT OF THE CASE

Appellant filed an untimely pro se appeal of his

dismissal for cause by the Agency, which appeal was

dismissed on procedural grounds by Board Adminis-

trative Judge LuNell C. Anderson for its untimell-

ness. Through counsel, Appellant filed a Petition for

Review of the Judge Anderson’s decision, which the

A-59

APPENDIX

Board summarily denied, citing the untimeliness of

the initial appeal.

V. STATEMENT OF THE FACTS

On June 13, 2007, the Agency issued a letter of

decision removing the Appellant, Alex M. Grialva,

for cause from his position as a Maintenance Me-

chanic (A35-36). On September 11, 2007, 48 days af-

ter the statutory deadline for filing an appeal, the

Appellant filed his appeal of that decision to the

Board without benefit of counsel (A14-20). His appeal

was reviewed by Administrative Judge LuNell C.

Anderson.

Because it appeared that the Appellant’s petition for

appeal was untimely filed, Judge Anderson issued an ac-

knowledgment order on September 17, 2007, advising

the Appellant of the Board’s filing requirements and or-

dering him to respond within 10 days with evidence

and/or argument showing that his appeal was timely

filed or that good cause existed for the delay (A22-30).

On September 21, 2007, the Appellant responded

to the acknowledgment order, again without benefit

of counsel, but failed to address definitively the per-

tinent issues raised by Judge Anderson (A59Q).

Subsequently, on November 26, 2007, Judge Ander-

son dismissed Appellant’s Appeal on procedural grounds

as untimely filed (A2-8).

On December 28, 2007, Appellant filed a Petition

for Review of Judge Anderson’s decision, this time

through the Law Offices of Linda Rose Fessler (A69-

74).

On March 21, 2008, the Board denied Appellant’s

Petition for Review, issuing its final decision in the

matter (A10-12).

On May 16, 2008, Appellant filed his Petition for

A-60

APPENDIX

Review with the Court of Appeals for the Federal

Circuit (A76).

VI. SUMMARY OF THE ARGUMENT

1. Appellant filed his original appeal with the

Agency pro se (A14-20). He was simultaneously in-

volved with a criminal action directly related to, and

consequent to, his being removed for cause by the

Agency (A37-55; 67). He believed — incorrectly — that

the thirty-day time to file his appeal commenced with

the decision on whether he would be charged with a

felony or a misdemeanor (A59). This constitutes an

inadvertent violation of the procedural] rules, result-

ing 1n a miscarriage of justice. Even though he ought

to have known, it is a miscarriage of justice to deny a

legitimate appeal on this procedural grounds.

2. By denying the appeal on procedural grounds, the

Board has made it impossible for the matter to be heard

on its merits. Appellant is not addressing the merits of his

original appeal; all Appellant wants is the chance for his

appeal to be heard on its merits — for somebody other than

the self-interested Agency to hear the facts.

VIL THE ARGUMENT

Standard of Review:

1. The appeal was wrongly decided based on the

evidence already in the record;

2. There is new evidence, which was previously

unavailable despite Appellant’s due diligence, that

supports a different outcome; or

3. Errors in the way the appeals proceeding was

handled denied Appellant the opportunity to fairly

present his case.

A-61

APPENDIX

A. Board Policy Considerations Counsel

Against Dismissals For Untimely Filing And Mi-

litate For Providing Employees With A Hearing

On The Merits Of Their Appeals

In Walls v. Merit Systems Protection Bd., 29 F.3d

1578 (Fed. Cir. 07/26/1994) this court said (at [22]):

The Board has acknowledged that its “regula-

tions include no specific criteria for determin-

ing when good cause has been shown for waiv-

ing the time limitation on the filing of an ap-

peal.” Alonzo v. Department of the Air Force, 4

M.S.P.R. 180, 184 (1980). Furthermore, the

Board has also noted that policy considera-

tions counsel against dismissals for un-

timely filing and militate for providing

employees with a hearing on the merits

of their appeals, id. at 183 (citing S. Rep. No.

969, 95th Cong., 2d Sess. 24, 51 (1978), re-

printed in 1978 U.S.C.C.A.N. 2723, 2773), and

that “broad equitable principles of Jus-

tice and good conscience” should be ap-

plied in good cause determinations, id. at

184. [emphasis added]

Walls v. Merit Systems Protection Bd., 29 F.3d

1578 (Fed. Cir. 07/26/1994)

In the within case, Appellant was discharged for

cause by the Agency (A35-36), and filed an untimely

appeal to the Board (A14-20). The Board dismissed

his appeal for the untimeliness (A10-12), so that Ap-

pellant did not have a hearing on the merits of his

case. This runs directly counter to the Board’s stated

policy that “broad equitable principles of Justice and

good conscience” should be applied in good cause de-

A-62

APPENDIX

terminations.”

B. If The Employee Gives A Reasonable Excuse

For The Delay, Such Excuse Should Be Ac-

cepted By The Presiding Official, Absent A

Showing Of Substantial Prejudice To The

Agency Caused By The Delay In Filing.

The Appellant gave reasons for his late filing, specif-

ically citing a related criminal case where he was await-

ing a determination of whether he was facing a felony or

a misdemeanor charge (A37-55; 67), and specifically

stating that he thought the time for filing his appeal ran

from the date of that determination (A59). Appellant

was pro se, (and thus without benefit of counsel), facing

a hugely life-altering event, and made a decision he

thought was correct. The Appellant’s decision was rein-

forced by a favorable unemployment benefits decision

that seemed to support the merits of his case (A62-65).

Despite this, the Board breached its own policy consid-

eration that “...counsel|s] against dismissals for untime-

ly flung and militate[s] for providing employees with a

hearing on the merits of their appeals...(Walls v. Merit

Systems Protection Bd., 29 F.3d 1578 (Fed. Cir.

07/ 26/1994)).

The Board further ignored its stated position that

“...“broad equitable principles of Justice and good

conscience” should be applied in good cause determ1-

nations.... “If the employee gives a reasonable excuse

for the delay, such excuse should be accepted by the

presiding official, absent a showing of substantial

prejudice to the agency caused by the delay in fil-

ing.”” (Walls v. Merit Systems Protection Bd., 29 F.3d

1578 (Fed. Cir. 07/26/1994)). Since the Agency was

silent on the matter of “...substantial prejudice to the

agency caused by the delay in filing,” this court can

A-63

APPENDIX

presume there was no prejudice to the Agency result-

ing from Appellant’s late filing.

In Walls, this court concluded simply that “Be-

cause petitioner has shown good cause for his un-

timely filing and because the Agency has made no

showing of substantial prejudice flowing from

the...filing delay, we hold that the AJ abused his dis-

cretion by not waiving the filing deadline for good

cause.” (Walls v. Merit Systems Protection Bd., 29

F.8d 1578 (Fed. Cir. 07/26/1994)) Similarly, in

Pyles v. Merit Systems Protection Bd., 45 F.3d 411

(Fed. Cir. 01/10/1995), this court found that “ [38]

Because Pyles showed good cause for her untimely

filing, and the OPM made no effort to show substan-

tial prejudice flowing from the delay, we hold that

the denial of the waiver was an abuse of discretion.”

In the within case, Appellant presented reasons

he clearly believed were sufficiently substantial to

merit a waiver of the untimely filing, whereas the

Agency made no effort to show substantial prejudice

flowing from the delay. Appellant’s case should,

therefore, be heard on its merits, and not be dis-

missed on procedural grounds.

C. Any Doubt About Whether Good Cause Has

Been Shown Should Be Resolved In Favor Of

An Appellant. Good Cause Is An Elastic Con-

cept [Which] Entitles The Employee To The

Application Of The Broad Equitable Principles

Of Justice And Good Conscience

In Ceja v. United States, 710 F.2d 812 (Fed. Cir.

06/27/1988) this court noted that “{[21] Alonzo, et al.

v. Department of the Air Force, et al., 830 FMSR para.

7032 (1980) is the seminal decision of the MSPB

which delineates the factors which are to be consi-

A-64

APPENDIX

dered in deciding whether the...time limit for appeal

is to be waived.” This court then further notes that

the Alonzo decision states in part:

[22] If the employee gives a reasonable excuse

for the delay, such excuse should be ac-

cepted by the presiding official, absent a

showing of substantial prejudice to the

agency caused by the delay in filing. The

appellant need not show an utter impossibili-

ty, but only that the delay was excusable in

light of the particular facts and attending cir-

cumstances where diligence or ordinary pru-

dence has been exercised.

[24] Generally, we believe that in cases such

as these, any doubt about whether good

cause has been shown should be resolved

in favor of an appellant. In determining

whether the agency was unduly prejudiced by

the delay, we have balanced the equities in-

volved, weighing the difficulties of the agency

against the benefit to the appellant. [emphasis

added]

Ceja uv. United States, 710 F.2d 812 (Fed. Cir.

06/27/1983)

The foregoing statements seem to leave no doubt

that the Board should have waived the late filing in

the within case, and reviewed the case on its merits.

In Pfaehler v. Merit Systems Protection Board, 7883

F.2d 187 (Fed. Cir. 02/10/1986) this court once

again addresses this issue by saying that “[27]... in

keeping with Alonzo: “good cause is an elastic con-

cept [which] entitles the employee to the application

of the broad equitable principles of justice and good

A-65

APPENDIX

conscience”. 4 M.S.P.R. at 183-4.”

In Yuni v. Merit Systems Protection Board, 784

F.2d 381 (Fed. Cir. 02/19/1986) this court said:

[31] Once more we seek to apply the wisdom

expressed by the MSPB in Alonzo v. Depart-

ment of the Air Force, 4 M.S.P.R. 180, 183-84

(1980): “good cause’ is an elastic concept...

[which] entitles the employee to the applica-

tion of the broad equitable principles of justice

and good conscience.” In Ceja v. United States,

710 F.2d 812, 814 (Fed. Cir. 1983), this court

quoted Alonzo with approval to the effect that

any doubt as to whether good cause has been

shown should be resolved in favor of an appel-

lant, that an appellant need not show impossi-

bility but only that the delay was excusable in

light of the surrounding circumstances where

ordinary prudence had been exercised, and

that a reasonable excuse should be accepted by

the presiding official absent proof of substan-

tial prejudice to the agency.

Yunt vu. Merit Systems Protection Board, 784

F.2d 381 (Fed. Cir. 02/19/1986)

This court acknowledged that “[16] The statutory

provisions for appeals to the board give the board

broad discretion in handling appeals and controlling

its own docket by requiring that appeals be processed

in accordance with regulations prescribed by the

board.” Phillips v. United States Postal Service, 6965

F.2d 1389 (Fed. Cir. 12/23/1982). But in Young v.

Department of Commerce, 737 F.2d 1029 (Fed. Cir.

06/28/1984) said: “ [23] Notwithstanding our defe-

rence to the M.S.P.B. under Phillips, we find here

A-66

APPENDIX

that the excuses offered by petitioners are reasonable

and find no showing of prejudice to the agency in the

record. Under the circumstances of this case, we hold

that the M.S.P.B. abused its discretion in not accept-

ing the three appeals.”

As in Young and Yuni, Appellant herein supplied

the Board with “a reasonable excuse” in this case,

and the Agency remained silent on the matter, de-

clining to present “proof of substantial prejudice to

the agency.” Any doubt, therefore, should be decided

in favor of the Appellant.

Although not a precedent for this Court, it is in-

teresting to note that the Utah Supreme Court de-

termined that “An analysis of what constitutes an

exception in the “interests of justice” should involve

examination of both the meritoriousness of the peti-

tioner’s claim and the reason for an untimely filing.”

Adams v. State, 123 P.3d 400, 2005 UT 62. Thus, the

principle that merit trumps timeliness extends

beyond the Federal circuit, and certainly should be

apphied to the within case.

Vill. CONCLUSION

Appellant was discharged for cause by the Agen-

cy, and simultaneously charged with criminal con-

duct related to that discharge. He saw these matters

as related, and mistakenly believed he had 30 days

following finalizing of the criminal charges to file his

appeal of the discharge to the Board.

The Board dismissed his appeal as untimely, and

subsequently denied his Petition for Review.

For all the reasons stated above, and in the inter-

est of equity and justice, Appellant seeks a reversal

of the Board’s decision to dismiss his appeal for un-

timely filing, and that his appeal be remanded for

A-67

APPENDIX

consideration on its merits.

DATED: August 12, 2008 LAW OFFICES OF

LINDA ROSE FESSLER

___/s/ Linda Rose Fessler

Linda Rose Fessler

Attorney for Alex M. Gryalva

APPENDIX

U.S. Department of Homeland Security

United States Coast Guard

Commanding Officer

Integrated Support Command San Pedro

1001 S Seaside Ave, Bldg 10

San Pedro, CA 90731

Staff Symbol: e

Phone: 310-732-7445

Fax: 310-732-7449

Email: Michael.A.Hudson@uscg.mil

12750

21 May 2007

MEMORANDUM

/s/ M.A. Hudson

From: M.A. Hudson, LCDR, USCG

CG ISC SAN PEDRO (c)

To: Mr. Alex M. Grijalva, Maintenance

Mechanic, WG-4749-09

Subj; NOTICE OF PROPOSED REMOVAL

Ref: (a) COMDINST 12750.4 (series)

(b) 5 CFR 752

(c) 5 USC 7503

1. This is official notice that J propose to remove you

from your position. of Maintenance Mechanic,

WG-4749-09, at USCG Integrated Support Com-

mand San Pedro, and from Federal employment.

This is a notice of proposed adverse action issued in

A-69

APPENDIX

accordance with references (a), (b) and (c). In order

to promote the efficiency of the service, it is pro-

posed to remove you from the service any time after

thirty (30) calendar days from the date you this no-

tice. This proposed removal is based on the charge

of providing prohibited objects and coordinat-

ing/aiding in the smuggling of prohibited objects to

inmates at the Federal Correctional] Institution,

Terminal Island, San Pedro, CA in exchange for

money. This action is being taken to promote the ef-

ficiency of the service. You will remain in an ad-

ministrative leave status during this notice period,

unless otherwise notified in writing. The specific

facts supporting the charge are stated below:

Providing prohibited. objects, and coordinat-

ing/aiding in the smuggling of prohibited items to

inmates at the Federal Correctional Institution,

Terminal Island, San Pedro, CA, in exchange for

money. in an affidavit signed on January 18, 2007

to the Coast Guard Investigative Services in an offi-

cial investigation, you admitted on numerous occa-

sions to purchasing and aiding in the smuggling of a

variety of prohibited items for inmates at the Fed-

eral Correctional Institution, Terminal Island, San

Pedro, California. You admitted that from the pe-

riod of December 2005 to January 2007, you re-

ceived funds from inmates’ family members and as-

sociates to purchase and deiiver prohibited items to

the inmates. You admitted to helping the inmates

smuggle the prohibited items into the Federal Cor-

rection Institution.

2. In making my decision to propose your removal,

in addition to the above facts, I took into considera-

tion the Douglas factors. In doing so, I considered

A-70

APPENDIX

such factors as the .seriousness of your actions, the

affect your misconduct has on the organization, your

employment history, your length of service your at-

tendance record, your performance record and your

disciplinary record. I note that you have admitted to

providing prohibited. items to inmates on numerous

occasions and acknowledged that you knew what

you were doing was wrong. Your actions resulted in

a multi-agency investigation which brought discre-

dit upon this command and the United States Coast

Guard. Your actions are also being reviewed by the

U.S. Attorney’s office for violation of Title 18 USC

1791. In addition, your actions resulted in the eli-

mination of the inmate labor program at ISC San

Pedro. In proposing this action, I considered the fact

that you have over 24 years of creditable Federal

service and your performance ratings for the past

three years have been at the Meets level. | also con-

sidered the fact that you have no prior disciplinary

offenses. Your actions have caused me great concern

and I have lost confidence in your judgment and

your ability to carry out the duties of your position.

To tolerate in any way your behavior, would be con-

trary to the good order and discipline of this com-

mand. Due to the nature and the seriousness of your

actions, I have determined that proposing a lesser

remedy would not be appropriate.

3. This proposal is made to promote the efficiency of

the service and is necessary in order to maintain

good order and discipline in our organization. This

proposal is also consistent with the Guideline

Schedule of Offenses and Remedies found in

COMDTINST M12750.4, Civilian Personnel Ac-

tions: Discipline, Performance, Adverse Actions,

Appeals and Grievances.

A-71

APPENDIX

4. You have the right to reply to this notice orally

and/or in writing and to submit affidavits and other

evidence in support of your reply. Your reply, if any,

must be made within ten (10) calendar days after

the receipt of this notice and should be addressed to:

CDR William Fox, Executive Officer, ISC San Pe-

dro, 1001 S. Seaside Avenue Bldg #24, San Pedro,

CA 90731. If you wish to make a personal reply, you

many arrange an appointment by contacting Ms.

Janet Pecarich at (310) 732-7403.

5. You may have an attorney or other person of your

choice represent you in any proceeding concerning

this proposed action. If you desire a representative,

the individual must be designated in writing to the

deciding official. This agency may disallow your

choice of representative if a conflict of interest ex-

ists. You and your representative are entitled to re-

view the materials relied upon to support this pro-

posed action. You can arrange to review the mate-

rials by contacting LCDR Hudson at (310) 732-7445.

6. ‘his is a proposal only. No final decision will be

made until your reply is received and carefully con-

sidered, or until the reply period has passed should

you not respond. Consideration will be given to any

extension with a justifiable request. Full and im-

partial consideration will be given to any reply you

submit before a final decision is made on this pro-

posal. You will be notified in writing of the decision

on this proposed action.

7. If you have any questions concerning procedural

rights applicable to this proposal, you may contact

Mr. Richard Lee, Command Staff Advisor,. at (510)

A-72

APPENDIX

437-3952.

Copy: CG-12I

Mr. Richard Lee, Command Staff Advisor

CDR William Fox, Executive Officer

Please sign the receipt of acknowledgment below as

evidence that you have received this letter. Your

signature does not mean that you agree with the

contents of the letter; nor by signing, are you forfeit-

ing any of your rights cited above.

Receipt Acknowledged: /s/ Alex M. Grijalva

Date: May 21, 2007

APPENDIX

TO: CDR William A. Fox

From: Alex Grijalva

Subject: Termination letter.

I received my proposed termination letter from

LCDR M.A. Hudson yesterday morning. First, I'd

like to say I don’t know where he got the idea that I

made any money off the inmates. They were getting

paid .40 cents an hr. & also getting paid in postal

stamps. This is an assumption on his part, there is

no proof that | made a cent nor did | ever admit to it

on my statement. Second, yes I purchased contra-

band for the inmates. I knew it was wrong. However,

I never knew it was illegal or a crime. Noone in the

shops have had formal training on how to handle

inmates. There was a breifing once, when they first

came on board. Supervisors were the only persons

who attended. Also I never smuggled anything ever

into the prison complex. I mean, how could I? | did

bring it on board into the shop area, they took it

from there. I never knew how they got stuff inside. IJ

never admitted to that either. They would tell me

they had prison guard friends. There was never any-

thing illegal about what I purchased for these men.

All over the counter products. Sir, money was never

a motive for me. I’m very upset & angry that my

reasons for what I did are not mentioned. This was

on my statenment I’m going to take some time & ex-

plain. I’ve been on base for 12 years. I’ve had 3 major

on the job related injuries & 3 surgeries to correct

these injuries. During the time the inmates came on

board | was preparing for my 3rd surgery which was

a herniated neck disk brace fusement. This surgery

happened on April 06 I returned to work in June

with lite duty restrictions that still apply to this day.

Lite duty was honored by my supervisor Daniel

A-74

APPENDIX

Rangel for about 3 weeks.. Then he said he needed

me out in the field to help with the inmates. He said

he wanted me to train these guys to do my job. Not

to do the work but to train them to do it So I did the

best I could in doing just that. It wasn’t long before I

found myself on my knees working right along with

these men. We began knocking out allot of work or-

ders. Everyone was happy, however, the inmates

became more demanding as far as requesting favors.

I was very much depending on these men. They were

doing my job! Favors as far as food started long be-

fore we started purchasing other products. Before I

went into surgery we were, | mean the DC Shop

personal/supervisor included were pitching in to buy

the inmates Birthday Cakes & Ice Cream on their

b-days.We would collect & recycle aluminum cans,

plastics etc. & with the money buy food for a shop

party. Inmates were always included. They did most

of the cooking. Now, if this is such a crime why am I

the only one being punished? I’ve seen others pur-

chase food, soft drinks, chewing tobacco, for the in-

mates. I’ve seen supervisors eat prison food that was

prepared by the prison. I’ve seen the EM Shop pro-

vide DVD rated “R” movies for the inmates during

lunch periods & sports days. The inmates only get to

watch rated “G” movies inside. Sir, what I’m saying

is there was allot of different favors being done by

just about everyone in the shops for these men. My

disability to do my job properly weighed heavy on

me, I was very dependent on the inmates to help me

out. The more work we did the more demanding they

became. | sorry for my part in this mess. | apologize!

I respectfully ask that reconsideration for my termi-

nation be granted. I have 24 good years with 4

branches of our Government. ARMY, NAVY, AIR

A-75

APPENDIX

FORCE, COAST GUARD. I'm a 53 year old, hispanic

male, Vietman Era Vet with just a few months be-

fore J] quailify for retirement

Sincerely, Alex Grijalva

/s/ Alex M. Grijalva

5/22/07

APPENDIX

U.S. Department of Homeland Security

United States Coast Guard

Commanding Officer

Integrated Support Command San Pedro

1001 S Seaside Ave, Bldg 10

San Pedro, CA 90731

Staff Symbol: e

Phone: 310-732-7445

Fax: 310-732-7449

Email: Michael.A.Hudson@uscg. mil

12750

13 June 2007

MEMORANDUM

/s/ W.A. Fox

From: W.A. Fox, CDR, USCG

Executive Officer, ISC San Pedro

To: Mr. Alex M. Grijalva, Maintenance

Mechanic, WG-4749-09

Subj; DECISION ON PROPOSED REMOVAL

Ref: (a) COMDINST 12750.4 (series)

(b) 5 CFR 752

(c) 5 USC 7503

1. In a letter to you dated May 21, 2007, the Eng)-

neering Officer, USCG Integrated Support Com-

mand San Pedro, proposed to remove you from your

position of Maintenance Mechanic, WG-4749-09, at

USCG Integrated Support Command San Pedro, no

A-77

APPENDIX

earlier than thirty (30) calendar days from receipt of

that notice. The proposal was based on your actions

of providing prohibited objects to inmates at the

Federal Correctional Institution, Terminal Island,

San Pedro, CA in exchange for money. The reply pe-

riod has now passed.

2. After carefully considering the information re-

garding your conduct and your written e-mail re-

sponse provided to me on May 22, 2007, I find as fol-

lows:

I find that the evidence supports the charge of pro-

viding prohibited objects and coordinating/aiding in

the smuggling of prohibited objects to inmates at the

Federal Correctional Institution Terminal Island

San Pedro, CA. I further find that the amount or

money you may have profited, if any, was not signif-

icant enough to indicate a profit motive on your be-

half. ln an affidavit signed on January 18, 2007 to

the Coast Guard Investigative Services in an official

instigation, you admitted to on numerous occasions

purchasing and aiding in the smuggling of a variety

of unauthorized items for inmates at the Federal

Correctional Institution, Terminal Island, San Pedro

California. You admitted that from the period of De-

cember 2005 to January 2007, you received funds

from inmates’ family members and associates to

purchase and deliver unauthorized items to the in-

mates. You admitted to helping the inmates smuggle

the unauthorized items into the Federal Correctional]

Institution.

3. In making this decision, in addition to the above

facts, I took into consideration the seriousness of this

incident and the impact your misconduct has had on

A-78

APPENDIX

Integrated Support Command San Pedro. I alse con-

sidered such things as your employment history,

your length of service, your attendance record, your

performance record and your past disciplinary

record.

4. Based on the above determinations,. I find that

removal is the only appropriate remedy for your

conduct. I have considered lesser forms of discipline,

but the severity of your actions, their impact on ISC

San Pedro’s operations, potential disgrace to the

Coast Guard, and my loss of confidence in your

judgment indicate that a lesser remedy would not be

appropriate.

5. You have the right to appeal this decision to the

Merit Systems Protection Board (MSPB). An appeal

must be forwarded either by personal delivery dur-

ing normal business hours, by facsimile, by mail, or

by commercial overnight delivery. If you file an ap-

peal outside a time limit set by statue or regulations,

you must file with the petition a motion for waiver of

the time limit. The motion must contain evidence

and argument showing good cause for the delay in

filing or your appeal may be dismissed by the MSPB

as untimely. Your appeal may be filed with the

MSPB within thirty (30) calendar days beginning

the day after the effective date of this action. Your

petition for appeal should be addressed to the West-

ern Regional Field Office, Merit Systems Protection

Board, 750 Montgomery St, Suite 400, San Francis-

co, California 94104. Phone (415) 705-2935. A copy of

the MSPB regulations and appeal form are enclosed.

6. If you believe this action was taken it whole or in

part on the basis of prohibited discrimination due to

A-79

APPENDIX

race, color, religion, national origin, handicap, or

age, you may either file a timely complaint of dis-

crimination, or file an appeal with MSPB, as pre-

viously described; however, you may only elect one

avenue of redress. To file a complaint of discrimina-

tion in accordance with COMDTINST M127138.7 and

29 CFR 1614, you must contact an Equal Employ-

ment Opportunity counselor within forty-five (45)

calendar days of the effective date of this action.

7. As an employee with 24 years federal service you

may be eligible for a disability retirement. You may

file an application for a disability retirement with

the Office of Personnel Management within year

from your date of separation Please contact Walter

Misiorek at 202-475-5326 for additional information.

8. If you have any questions concerning procedural

rights apphcable to this decision, you may contact

Mr. Richard Lee, Command Staff Advisor, at (510)

437-3952.

Encl: (1) Copy, MSPB regulations: SCR 1.200 - 1209

(2) MSPB Appeal Form: Optional Form 283

Copy: CG-121

Mr. Richard Lee, Command Staff Advisor

I acknowledge receipt of this letter.

Receipt Acknowledged: /s/ Alex M. Griyalva

Date: 6/13/2007

A-80

APPENDIX

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PROBATION OFFICE

January 7, 2008

LORETTA S. MARTIN

CHIEF PROBATION OFFICER

800 U. S. COURTHOUSE

312 N. SPRING STREET

LOS ANGELES 90012-4708

Honorable Jeffrey W. Johnson

United States Magistrate Judge

United States Court House

Los Angeles, California 90012

Re: GRIJALVA, Alex M.

Docket No. CM-010174W

Dear Judge Johnson:

Because this case is a Class B Misdemeanor, the

sentencing guidelines do not apply. Having consi-

dered the sentencing factors enumerated at 18

U.S.C. 3553(a), the Probation Officer respectfully re-

commends the following sentence.

It is ordered that the defendant shaii pay to the

United States a special assessment of $10, which is

due immediately.

All fines are waived as it is found that the defendant

does not have the ability to pay.

A-81

APPENDIX

Pursuant to the Sentencing Reform Act of 1984, it is

the judgment of the Court that the defendant, Alex

M. Grijalva, is hereby placed on probation on the

Single-Count Information for a term of six months

under the following terms and conditions:

1. The defendant shall comply with the rules

and regulations of the U. S. Probation Office

and General Order 318; and

2. During the period of community supervision

the defendant shall pay the special assess-

ment in accordance with this judgment's or-

ders pertaining to such payment.

The drug testing condition mandated by statute is

suspended based on the Court's determination that

the defendant poses a low risk of future substance

abuse.

Justification

Pursuant to 18 U.S.C. § 3553(a) the court shall im-

pose a sentence sufficient, but not greater than ne-

cessary, to comply with the purposes set forth in pa-

ragraph (2) of this subsection. The court, in deter-

mining the particular sentence to be imposed, shall

consider —

1. The nature and circumstances of the offense

and the history and characteristics of the

defendant;

No

The need for the sentence imposed —

a. To reflect the seriousness of the offense;

to promote respect for the law; and to

provide just punishment for the offense;

A-82

APPENDIX

b. To afford adequate deterrence to criminal

conduct;

c. To protect the public from further crimes

of the defendant; and

d. To provide the defendant with needed

educational or vocational training, medi-

cal care, or other correctional treatment

the most effective manner.

The kinds of sentence available;

The guideline sentencing rang,

Any pertinent policy statements issued by

the Sentencing Commission;

6. The need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of simi-

lar conduct; and

7. The need to provide restitution to any victims

of the offense.

oe ww

Before the Court is 53-year-old Alex M. Grijalva who

plead guilty to one count of providing contraband to

an inmate, a Class B Misdemeanor.

To his credit, Grijalva was forthcoming at the time of

the presentence interview and has taken full respon-

sibility for his actions. The risk of recidivism appears

slight as the offense appears limited to the circums-

tances, 1.e., Grijalva was unable to physically com-

plete his work and agreed to purchase cigarettes and

provide them to FCI-TI inmates, in exchange for the

inmates completing Grijalva's work. Grijalva is no

longer employed by the United States Coast Guard

and therefore not in contact with inmates. Notwith-

standing the instant offense, Grijalva has lead a

productive lifestyle; he has no criminal history and

A-83

APPENDIX

has a steady history of employment, having worked

for as a building maintenance mechanic for the fed-

eral government for a total of 24 years, until his ter-

mination from the U.S. Coast Guard as a result of

the .nstant offense. In light of the above factors, a

sentence of six months probation is reeommended. A

fine has been waived as Grijalva does not have the

ability to pay a fine.

Respectfully submitted,

LORETTA S. MARTIN

Chief U.S. Probation Otficer

/s/ Lori Pascover

LORI PASCOVER

U.S. Probation Officer

Reviewed and Approved:

/s/ Susan Jones

SUSAN JONES

Supervisor

APPENDIX

From: Alex M. Grijalva Case No. 2174517 (UCFC)

To: J. Henley

Administrative Law Judge

Subject: Written Declaration

I was terminated on June 25, 2007 for giving

inmates contraband (Prohibited Objects). First I

would hike to say that when this Investigation first

began, I cooperated in every aspect. I was honest

about what I had done to all investigators & au-

thorities. However, when asked for union represen-

tation, | was denied. | was in this alone. I was very

intimidated by everyone’s questioning. I could not

afford help from an attorney.

Second, I was not alone in this as far as giving

the inmates contraband. Everyone in the DC Shop

was giving these men prohibited objects. Including

the DC Shop supervisor Daniel Rangel. Food, maga-

zines are also prohibited objects. Mr. Rangel would

often turn a blind eye to all that was going on. We

would collect monies from shop members to buy cake

& ice cream for inmates on their birthdays. We

would also collect & recycle aluminum & plastics.

With this monies we would have DC Shop parties &

the inmates were always invited. They would do

most of the food preparations. The inmates would

also share there prison food with the military per-

sonnel as well as the civilians. Yes including Mr.

Rangel. No-one else was punished in the DC Shop.

No-one else was as honest as I & one other gentle-

man whom worked in the M & R Shop, P.O. Deiand.

Third, the Electric Shop supervisor Chief Sierras

also provided special favors for these men. He woud

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let them watch “R” rated movies in his shop during

lunch & sport days. They are only allowed “G” rated

movies inside the prison. He would let them store/

prepare food in the EM Shop. They would always

‘prepare him a plate in exchange for his favors.

Fourth, I believe my punishment was much to

harsh. My neuro-surgeon Dr Mahornar, 1505 Edge-

mont, 4th Floor L.A., Ca. 90027 (800-954-8000) said

they’re making excuses to get rid of you because of

your limited disability. I believe I was singled out. I

could continue to work & they denied me this oppor-

tunity “Racism/Discrimination”. I had herniated disk

neck surgery in April of 2006. I was placed on lite

duty a few months before the surgery & still to this

date | have the same limited restrictions. That’s

when the favors of food began for me. I became very

dependent upon these men to help me do my job.

There was no other motive for my giving these men

contraband. Dr. Mahomar has placed me on retire-

ment disability. My claim is still pending.

Fifth, as far as the felony charge goes. My newly

appointed Public Defender Alan I. Rubin, 11755

Wilshire Blvd. 15th Floor LA, Ca. 90025

(310-473-6447) says what I did was nothing more

than a “Minor Misdemeanor”. That this matter

shouldn’t have gone this far. Because of my 24-1/2

year clean record the USCG could have taken other

means of punishment/rehabilitation. That the U.S.

prosecuting attorney Steven Arkow, 311 North

Spring St.. L.A., Ca. 90012 (213-894-2434) can dis-

miss this charge or settle this matter out of court.

Sixth, the Equal Opportunity Commission

will be consulted about these issues. At time of

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the incident “injury” it had not been determined

that it was an illness or disability.

I declare under penalty of perjury under the laws

of the State of California that the forgoing is true &

correct.

/s/ Alex M. Grijalva

9/18/2007

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APPENDIX

INGLEWOOD OFFICE OF APPEALS

9800 South La Cienega Blvd. Ste 901

INGLEWOOD CA 90301

(310) 337-4302

ALEX MALDONADO Case No. 2114517 (UCFE)

GRIJALVA

SSN: xxxx-3760 Issue(s): 1256

Claimant-Appellant

Date Appeal Filed:

Vv 08/06/2007

EDD: 0410

US COAST GUARD BYB: 06/24/2007

Account No:

000-0000

Employer

Date and Place of Hearing(s):

(1) 09/18/2007 Long Beach

Parties appearing: Claimant, *Employer

* Indicates Party Appeared by Written Statement

DECISION

The decision in the above-captioned case appears on

the following page(s).

The decision is final unless appealed within 20

calendar days from the date of mailing shown be-

low. See the attached “Notice to Parties’ for fur-

ther information on how to file an appeal. If you

are entitled to benefits and have a question re-

garding the payment of benefits, call EDD at

1-800-300-5616.

/s/ J. Henley

Henley, Administrative Law Judge

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APPENDIX

Case No.: 2174517 Inglewood Office of Appeals

CLT/PET: Alex Grijalva AU: J. Henley

Parties Appearing: Claimant, Employer

Parties Appearing by Written Statement: Employer

ISSUE STATEMENT

The claimant appealed from a determination dis-

qualifying the claimant for unemployment benefits

under Unemployment Insurance Code section

1256. The issue in this case is. whether the clai-

mant was discharged for misconduct connected

with the most recent work.

STATEMENT OF FACTS

The claimant last worked for the employer for 12

years. He has worked for the federal government a

total of 24 years. His last day worked was April 24,

2007, as a building maintenance mechanic. His

terminating rate of pay was $24-86 per hour. His

separation occurred for the reasons stated below.

The claimant worked at a 12 acre facility that

was an island divided into two parts. One is a

correcuional facility, and the second half is the

property of the U.S. Coast Guard. The claimant

was responsible for carpentry, plumbing and

painting. There was one employee for each task.

The claimant and other employees were informed

that the Coast Guard had entered into an agree-

ment with the correctional facility. The Coast

Guard. would progressively introduce certain in-

mates in a work furlough program. When the

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APPENDIX

Coast Guard entered into the agreement with the

prisons, the employees were supposed to be pro-

vided training and signs were to be posted re-

garding the rules. Signs were not posted and they

were not provided training.

The claimant and other employees were opposed

to this mingling. Initially, the inmates ate by

themselves and the other employees ate by

themselves. Subsequently, after about six

months they became more integrated. They

started eating together and bonding. They would

all share food although that had been one of the

specifics they were told not to do. They were not

to share food with the inmates. However, super-

visors also were sharing food with the inmates.

In 2005, the prison system introduced a prohtbi-

tion against selling tobacco to inmates. This in-

cluded chewing tobacco as well as cigarettes and

cigars. The claimant became close with one spe-

cific inmate who asked him if he could buy him

vitamins, specifically whey protein. The claimant

agreed and started providing it although he was

not very comfortable doing this.

The claimant underwent three surgeries in the re-

cent years and was on light duty. He depended on

the inmates to assist him to perform the duties of

his job. At one point, the claimant spoke to his su-

pervisor asking that he not work with the inmates

anymore. Nevertheless, the claimant ended up

working with most of the inmates.

An investigation by the Department of Justice and

the Coast Guard Intelligence was initiated. The

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APPENDIX

claimant acknowledged that he had been providing

tobacco and vitamins as well as food to the inmates.

The claiment did not make any money on this ven-

ture. He did not smuggle anything into the prison.

He was not told that he could not provide them with

cigarettes and he was not told that he could not pro-

vide them with vitamins.

REASONS FOR DECISION

Unemployment benefits for federal civilian em-

ployees shall be paid in the same amount and

subject to the same conditions as benefits would

be payable under the unemployment program of

the state to which wage credits have been as-

signed. (United States Code, title 5, section

8502(b).)

An individual is disqualified for benefits if he or

she has been discharged for misconduct connected

with his or her most recent work. (Unemployment

insurance Code, section 1256.)

“Misconduct connected with the work” is a sub-

stantial breach by the claimant of an important

duty or obligation owed the employer, wilful or

wanton in character, and tending: to injure the

employer. (Precedent Decision P-B-3, citing May-

wood Glass Co. v. Stewart (1959) 170 Cal.App.2d

719.) On the other hand, mere inefficiency, unsa-

tisfactory conduct, poor performance as the result

of inability or incapacity, 1. olated instances of or-

dinary negligence or inadvertence, or good faith

errors in judgment or discretion are not miscon-

duct.

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APPENDIX

An employee shall substantially comply with all

the directions of his or her employer concerning

the service on which he or she is engaged, except

whore such obedience is impossible or unlawful,

or would impose new and unreasonable burdens

upon the employee. (Labor Code, section 2856.)

The employer has the burden of proving mis-

conduct. (Prescod vy. California Unemploy-

ment Insurance Appeals Board (1976) 57

CalApp.3d 29.)

In the instant case, while the claimant breached

the rule with regard to providing food for the in-

mates, since supervisors were also providing food

to inmates, the rule was condoned by the employ-

er. With regard to the other breach, the employer

has not established by credible direct evidence

that the claimant smuggled anything into the

prison or that the claimant received a financial

profit. Further, the employer has not established

that the claimant was specifically informed of the

prohibitions with regard to his interaction with

inmates in the correctional institute. Accordingly,

it is not found that the employer has met the bur

den of proof to establish that the claimant wilfully

and knowingly breathed a reasonable duty or ob-

ligation that he owed to the employer. The deter-

mination reversed.

DECISION

The determination is reversed. The claimant is not

disqualified from receiving unemployment benefits

‘under code section 1256. Benefits payable .provided

he is otherwise eligible.

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