Krim M. Ballentine, Petitioner, v. Department of Justice, Respondent, 845 F.2d 1033 (Fed. Cir. 1988)

DECISION

The decisions of the Merit Systems Protection Board (MSPB or Board), Docket No. CH075285A0053, that petitioner did not have good cause for filing an untimely petition for attorney fees, are affirmed.

OPINION

In a final decision dated May 21, 1980, the Board affirmed the decision of its Chicago Regional Office reversing petitioner's demotion, but modified petitioner's penalty from a 30-day suspension to a 60-day suspension. Petitioner then requested attorney fees on July 18, 1986. At that time the Board required that a petition for attorney fees be filed within 10 days of the final MSPB decision. This was extended (on July 10, 1986) to 25 days from the final decision. Since petitioner did not file for attorney fees until July 18, 1986, this was obviously beyond even the extended 25-day limit. The MSPB administrative judge decided that grounds for a waiver had not been shown. In an opinion and order the full Board affirmed the administrative judge's initial decision. We affirm essentially on the basis of the full Board's opinion and order which was plainly within the MSPB's discretion and is neither arbitrary nor capricious. In particular the Board could very well decide that (a) premature requests for fees (before the final decision) do not warrant a waiver of an untimely filing after the final decision is actually made, and (b) petitioner was represented by counsel during a prolonged period before the MSPB and counsel should have acquainted himself with and abided by the time limits.