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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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.

| | Se an: SER IONE OA. 2
Code of Federal Regulations, 5 CL.F.R. $1201.
a ae er eee 2

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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PRE Be Oe PCI veo vicsicnsnvcnns suncvveveeseony sxssascenaasyn A-27
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 Criminal Case papers .....................06 A-8]
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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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APPENDIX

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

A-&8

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 provi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0614%3A1. Public record. Not legal advice.