Appealed from: Merit Systems Protection Board.
Before Rich, Michel, and Plager, Circuit Judges.
Margaret C. Pyles appeals from the December 9, 1993 decision of an Administrative Judge (AJ) of the Merit Systems Protection Board (Board), No. CH-831M-94-0102-I-1, dismissing her appeal from the March 25, 1992 reconsideration decision of the Office of Personnel Management (OPM) as untimely filed. The AJ's decision became the final decision of the Board on April 18, 1994, when, over the Dissenting opinion of Chairman Erdreich,*fn1 the Board denied Pyles' petition for review. Because the only Conclusion the AJ could reasonably have drawn on the record before him was that Pyles had shown a good cause for her untimely filing, his dismissal was an abuse of discretion. Accordingly, we reverse and remand.
Clarence Pyles, a former annuitant, died on December 4, 1986. Survivor annuity benefits for petitioner Margaret Pyles and her disabled daughters began the following day. One of the two daughters had been married from February 1977 to April 1983. Although her marriage and divorce took place prior to her father's death, the OPM interpreted 5 U.S.C. § 8341(a)(3) and (4) (1988) to bar annuity payments to the daughter. The OPM thus sought a refund of what it deemed to be a $12,576.40 overpayment, affirming its initial decision to that effect in a reconsideration decision dated March 25, 1992.
The March 25 reconsideration decision advised Pyles that, should she wish to pursue it, her appeal had to be filed with the Board within 25 days of the date of the decision -- that is, by April 19, 1992. Pyles, however, filed her appeal with the Board on November 12, 1993, approximately 19 months late. Because her appeal was untimely filed, the AJ ordered Pyles to show a good reason for the delay to support a waiver of the filing deadline. On November 30, 1993, Pyles, through counsel, submitted three documents demonstrating the cause of her delay: (1) a letter from Dr. John Daniel, a physician who treated her from January to July of 1992; (2) an affidavit from Michael Pyles, her son; and (3) a set of office notes from the physician who treated Pyles for injuries from a fall down the stairs and from an auto accident. Despite the AJ's order that "no evidence or argument on the timeliness issue filed after the close of record will be accepted," the government entered no evidence into the record regarding either the merits of the cause of Pyles' delay or any prejudice the government might suffer if the filing deadline of her appeal were waived.
The entirety of Dr. Daniel's letter, dated November 22, 1993, is as follows:
This is to attest that Margaret Pyles suffers from a degree of dementia which was present in January, 1992. In or around that time, this patient sustained a fracture, the stress of which caused her dementia to increase and she was incapable of making any legal decisions at that time. The dementia has progressed to the point that when I saw her in July, 1992, it was felt necessary for her to go and live in the vicinity of where her son was living so that she could be properly cared for. To reattest the fact that this patient was incapable of making any legal or medical decisions in January through July, 1992, is reaffirmed.
Pet. Br. at A10. The letter does not indicate that Dr. Daniel saw Pyles after July 1992, and her counsel conceded as much at oral argument.
Michael Pyles' affidavit further describes his mother's decline, placing it in the context of her life circumstances prior to January 1992. According to Michael, his mother, a woman of "advanced age," did not "take care of the business affairs of the family" prior to her husband's death in 1986. He began to encourage her to move from West Virginia to Ohio, closer to his own residence in Ohio, after she suffered a fall and broke both an arm and leg in mid-1991. Eventually, with the encouragement of both Michael and Dr. Daniel, Pyles agreed to move to Ohio. After her home in West Virginia was sold, according to Michael, Pyles "sorted through all of her family possessions," "trimming items that fit in a ten room house down to fit a three room apartment." In Michael's opinion, his mother "was physically and mentally impaired to the point that she could not understand the situation" regarding her appeal rights from the OPM's reconsideration decision. When he first learned, in late 1993, of OPM's reconsideration decision and his mother's failure to appeal from it, he sought the legal help that led to the instant petition for review.
In a December 9, 1993 decision, made on the written record without benefit of a hearing, the AJ concluded that Pyles had not fulfilled her burden of establishing that a good reason existed for the untimeliness of her appeal. According to the AJ,
The medical evidence on the appellant's dementia shows that the period of incapacity suffered from that condition lasted only until July, 1992. Even assuming that this condition constitutes a valid excuse prior to July, 1992, it does not constitute an excuse for the more than one year delay in filing the appeal after July, 1992. See Sing v. Department of the Navy, 51 M.S.P.R. 251, 254 (1991) (medical documents that do not address the entire period of the delay do not establish good cause for the entire delay). Moreover, the statement from the appellant's son reflects that the appellant was able to sell her house, move to another state, and "sort through" all her possessions. The evidence of the appellant's implied mental incapacity to file an earlier appeal is belied by this evidence reflecting that during the time period for an appeal the appellant was able to manage her own personal affairs. The appellant also has not explained her failure to have someone else file a timely appeal on her behalf.
Pet. Br. at 19. The Board, over the Dissent of Chairman Erdreich, denied Pyles' petition for review of the AJ's initial decision. Pyles then ...