Stoglin v. Merit Systems Protection Board , 603 F. App'x 952 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COREY DEMOND STOGLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3099
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-12-0357-I-1.
______________________
Decided: February 11, 2015
______________________
COREY DEMOND STOGLIN, Minneapolis, MN, pro se.
SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
2 STOGLIN v. MSPB
Petitioner Corey Stoglin appeals a final order of the
Merit Systems Protection Board (“Board”) dismissing his
petition for review as untimely filed without a showing of
good cause for the delay. See Stoglin v. Dep’t of Labor,
CH-075-12-0358-I-1 (M.S.P.B., Feb. 18, 2014) (Resp’t’s
App. 1–5) (“Final Order”). Because the Board properly
dismissed Mr. Stoglin’s petition, this court affirms.
BACKGROUND
I.
Petitioner Corey Stoglin worked as a compliance of-
ficer with the United States Department of Labor (“Agen-
cy”). On July 5, 2011, the Agency proposed to suspend
Mr. Stoglin under an Alternative Discipline Agreement
(“Agreement”) for thirty days due to “misuse of his gov-
ernment credit card and non-payment of the resulting
debt.” See Stoglin v. Dep’t of Labor, CH-075-12-0358-I-1
(M.S.P.B, July 10, 2012) (Resp’t’s App. 6–15) (“Initial
Decision”).
The Agreement mandated Mr. Stoglin “will be in a
leave without pay (LWOP) status for a period of seven []
duty days spanned over four [] pay periods.” Id. at 8. The
Agreement also required Mr. Stoglin to “pay all outstand-
ing credit card balance owed on his government issued
travel card by January 23, 2012.” Id. Finally, it stipulat-
ed that if Mr. Stoglin failed to take any action effectuating
any part of the Agreement, the deciding official “will issue
his decision to suspend [Mr. Stoglin] from duty and pay
for thirty [] calendar days.” Id.
Mr. Stoglin breached the Agreement by failing “to pay
the outstanding credit card debt by January 23, 2012.” Id.
Per the terms of the Agreement, the Agency subsequently
suspended him for thirty days. On March 21, 2012, Mr.
Stoglin filed an appeal from the Agency’s action suspend-
ing him from duty.
STOGLIN v. MSPB 3
In addition to his appeal contesting the thirty-day
suspension, Mr. Stoglin argued the Agency’s suspension
violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) (38 U.S.C.
§§ 4301–33), and the Veterans Employment Opportunity
Act (“VEOA”) (5 U.S.C. § 3330a). Mr. Stoglin’s VEOA and
USERRA claims were unrelated to his appeal contesting
the Agency’s thirty-day suspension. 1
A. Initial Decision
On July 10, 2012, the Administrative Judge (“AJ”) is-
sued an initial decision dismissing Mr. Stoglin’s appeal of
his thirty-day suspension because it found the Board
lacked jurisdiction to entertain his claims. Upon review-
ing the Agreement, the AJ determined Mr. Stoglin “specif-
ically and unambiguously waived his right to pursue a
Board appeal of his 30-day suspension.” Initial Decision
at 8. The AJ determined that if Mr. Stoglin “wished to
preserve his right to seek Board review, he had the bur-
den to expressly reserve that right under the settlement
agreement.” Id. at 4 (citing Mays v. USPS, 995 F.2d
1056, 1060 (Fed. Cir. 1993)). However, the AJ found the
Agreement unambiguously states Mr. Stoglin “will not
contest the contents of the agreement in any administra-
tive or judicial forum, including the [Board].” Id. at 5.
Therefore, the AJ held “as a result of the [Agreement] and
the appellant’s waiver, the Board is divested of jurisdic-
tion over this matter.” Id. at 5–6 (citing Grubb v. Dep’t of
the Interior, 76 M.S.P.R 639, 643–44 (1997)).
1 In the Initial Decision, the Board found Mr.
Stoglin failed to make nonfrivolous allegations under
VEOA and USERRA with respect to his thirty-day sus-
pension. Following this determination, the Board con-
cluded it did not have jurisdiction over Mr. Stoglin’s
VEOA and USERRA claims.
4 STOGLIN v. MSPB
In the Initial Decision, a Notice to Appellant (“No-
tice”) was provided to Mr. Stoglin, stating: the “[I]nitial
[D]ecision will become final on August 14, 2012, unless a
petition for review is filed by that date or the Board
reopens the case on its own motion.” Id.
B. Petition for Review
On June 5, 2013, the Board “informed [Mr. Stoglin]
that his petition for review in the instant case did not
meet the Board’s filing requirements because it appeared
that it was not filed by August 14, 2012.” Final Order at
2.
On February 18, 2014, the Board issued a Final Order
dismissing Mr. Stoglin’s petition as untimely filed without
showing good cause for the delay. In doing so, the Board
found “[t]he [I]nitial [D]ecision remains the final decision
of the Board regarding the appellant’s March 21, 2012
appeal of the 30-day suspension.” Id. at 4 (citing 5 C.F.R.
§ 1201.113).
DISCUSSION
I. Standard of Review and Jurisdiction
This court’s review of a decision of the Board is lim-
ited by statute. The Board’s decision must be affirmed
unless it is: “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c) (2012); see Briggs v. Merit
Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
This court can set aside a Board decision “unsupport-
ed by substantial evidence when it lacks such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” McLaughlin v. Office of Pers.
Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004) (internal
quotation marks and citations omitted). “[W]hether the
STOGLIN v. MSPB 5
regulatory time limit for an appeal [of an agency action]
should be waived based upon a showing of good cause is a
matter committed to the Board’s discretion and this court
will not substitute its own judgment for that of the
Board.” Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581
(Fed. Cir. 1994) (quoting Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992) (en banc)).
Mr. Stoglin appeals the Board’s decision dismissing
his appeal as untimely filed. This court has jurisdiction
under 28 U.S.C. § 1295(a)(9) (2012).
II. Mr. Stoglin Does Not Have a Claim under USERRA
On appeal to this court, Mr. Stoglin again argues the
Board applied the incorrect law because “USERRA was
not applied as liberally as Congress intended . . . [and the
Board] never addressed many of the issues of [his] case.”
Pet’r’s Br. 1. Furthermore, Mr. Stoglin contends the
Board’s decision “was . . . a retaliation by an agency
official who violated USERRA.” Id.
In its Initial Decision, the Board noted Mr. Stoglin
“made several additional VEOA and USERRA claims
unrelated to his [thirty-day] suspension,” and that “these
claims were separated out and addressed in [other pro-
ceedings].” Initial Decision at 2 n.1. Additionally, in its
Final Order, the Board stated:
The appeal that was docketed as MSPB Docket
No. CH-4324-12-0389-I-1 involved allegations that
the agency violated his rights under USERRA. In
a July 17, 2012 initial decision, the [AJ] dismissed
that appeal for lack of jurisdiction. The Board
dismissed the petition for review of that initial de-
cision as untimely filed without good cause shown.
The appellant sought judicial review of that deci-
sion before the U.S. Court of Appeals for the Fed-
eral Circuit.
Final Order at 2 n.2 (citations omitted).
6 STOGLIN v. MSPB
Mr. Stoglin does not challenge the validity of the
Board’s determination that his petition was untimely
filed. Additionally, because Mr. Stoglin’s USERRA claims
were not addressed by the Board in its Final Order and
are currently being litigated in a different judicial pro-
ceeding, his claims are not properly before this court. 2
See, e.g., Wallace v. Dep’t of the Air Force, 879 F.2d 833
(Fed. Cir. 1989) (applying the “general principle” that
appellate courts will not consider “an issue that was not
properly raised before or decided by the Board.”).
III. The Board Correctly Determined Mr. Stoglin’s Appeal
Was Untimely without a Showing of Good Cause
A petitioner filing an untimely petition for review
must show there was good cause for the delay and that he
“exercised due diligence in attempting to meet the filing
deadline.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374,
1377 (Fed. Cir. 2003); see also 5 C.F.R. § 1201.114(g).
Additional factors demonstrating whether there is good
cause for an untimely filing include “the length of the
delay, whether the [petitioner] was notified of the time
limit, the existence of circumstances beyond the [petition-
er’s] control that affected his ability to comply with the
deadline, the [petitioner’s] negligence, if any, and any
unavoidable casualty or misfortune that may have pre-
vented timely filing.” Zamot, 332 F.3d at 1377. The
burden is on the petitioner to show excusable delay. See
Mendoza, 966 F.2d at 653 (Fed. Cir. 1992). Therefore,
before the Board, the burden rests with Mr. Stoglin to
provide evidence showing he exercised diligence and
ordinary prudence in filing his appeal twenty-four days
late. See id.
2 On November 4, 2014, this court granted the
Board’s motion to remand Mr. Stoglin’s appeal asserting
his USERRA claim to the Board for further proceedings.
STOGLIN v. MSPB 7
A. Substantial Evidence Supports the Board’s Deter-
mination that Mr. Stoglin’s Petition for Review
Was Untimely
“[A] petition for review must be filed within 35 days
after the date of issuance of the initial decision or, if the
petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30
days after the date the petitioner received the initial
decision.” 5 C.F.R. § 1201.114(e). Here, the Initial Deci-
sion was issued on July 10, 2012 and specifically stated it
“will become final on August 14, 2012 [(i.e., thirty-five
days after the issuance of the initial decision)], unless a
petition for review is filed by that date or the Board
reopens the case on its own motion.” Initial Decision at 8.
Mr. Stoglin did not file his petition until September 7,
2012–twenty four days after the deadline.
The certificate of service shows the Initial Decision
was served on Mr. Stoglin, a registered e-filer, by elec-
tronic mail. Furthermore, Mr. Stoglin’s appeal to this
court is devoid of any evidence he did not understand the
language in the initial decision providing the date requir-
ing him to file a timely petition for review. The Board has
denied a waiver to its regulatory time limit in instances
where the petitioner does not establish a good reason for
an untimely filing. Wright v. Dep’t of the Treasury, 113
M.S.P.R. 124, ¶¶ 8–9 (2010) (finding an eleven day delay
not minimal when appellant has not shown good cause for
delay). Thus, the Board did not abuse its discretion in
finding Mr. Stoglin’s petition for review was untimely.
B. Mr. Stoglin Did Not Provide Evidence of Good Cause to
Waive the Regulatory Time Limit
On appeal, Mr. Stoglin urges this court to “reverse the
findings of the MSPB” because the AJ “failed to get the
facts of the case right despite [his] best efforts to explain
the motivating behavior of the agency.” Pet’r’s Br. 2. Mr.
Stoglin sought to present additional evidence “regarding
8 STOGLIN v. MSPB
the [A]gency’s purported violations of veterans’ preference
laws.” Final Order at 4. In arguing the Board should
waive the regulatory time limit to allow him to present
this evidence, Mr. Stoglin contends this evidence was not
available before the record closed. Resp’t’s Br. 9.
Although Mr. Stoglin argues the evidence was una-
vailable prior to the closing of the record, he has not
provided any evidence that he attempted to obtain the
evidence prior to the close of the record. See Phillips v.
U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982)
(stating delay is excusable where, under the circumstanc-
es, a petitioner exercises diligence or ordinary prudence).
Moreover, the evidence sought to be presented by Mr.
Stoglin could not establish good cause for his untimely
filed petition because it addresses the merits of the case
rather than the reason for the delay. Thus, Mr. Stoglin
has failed to show he exercised diligence and ordinary
prudence in filing his appeal. See Mendoza, 966 F.2d at
653.
Even accounting for his pro se status, the Board had
sufficient evidence to support its finding. The Board
considered many appropriate factors such as the extent of
Mr. Stoglin’s delay, his knowledge and access to the
Initial Decision, and the reasons provided as to why the
Board should waive the regulatory time limit. It did not
abuse its discretion by dismissing the appeal for failure to
show good cause.
CONCLUSION
For the foregoing reasons, the Board’s decision is
AFFIRMED
No costs.