Moore v. Merit Systems Protection Board , 582 F. App'x 873 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JERRIDENE H. MOORE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3089
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-11-0881-I-1.
______________________
Decided: September 16, 2014
______________________
JERRIDENE H. MOORE, of Red Oak, Georgia, pro se.
STEPHEN FUNG, Attorney, Office of the General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before CHEN, LINN, and HUGHES, Circuit Judges.
2 MOORE v. MSPB
PER CURIAM.
After multiple appeals to the Merit Systems Protec-
tion Board, Jerridene H. Moore sought review of a deci-
sion by a board administrative judge dismissing her
appeal. Her petition for review to the full board, however,
was filed almost 18 months after that decision became
final. The Board will excuse untimely filings if a petition-
er establishes good cause for the delay. Because the
Board did not abuse its discretion in finding that
Ms. Moore did not show good cause for the delay in filing
her appeal, we affirm.
I
On April 7, 2010, the Social Security Administration
issued a decision removing Ms. Moore from service. Two
days later, a union representative filed a grievance on
Ms. Moore’s behalf under the Administration’s negotiated
grievance procedure. According to Ms. Moore, the Admin-
istration issued a decision under that procedure on April
19, 2010.
In May 2010, Ms. Moore appealed to the Board. An
administrative judge issued an initial decision, finding
that, under 5 U.S.C. § 7121(e)(1), Ms. Moore’s earlier
grievance disqualified her from appealing to the Board.
That initial decision became final in October 2010, after
Ms. Moore failed to file a timely petition for review.
In March 2011, Ms. Moore appealed to the Board
again. An administrative judge dismissed Ms. Moore’s
appeal in June 2011, finding that she was collaterally
estopped from relitigating the appeal of her removal.
This dismissal became final in July 2011, after Ms. Moore
again failed to file a timely petition for review.
In August 2011, Ms. Moore appealed to the Board for
a third time. The Board found that it was unclear wheth-
er Ms. Moore was appealing her April 7, 2010 removal or
an arbitrator’s decision from July 2011 that may have
MOORE v. MSPB 3
included discrimination claims. Accordingly, the Board
ordered the parties to address whether the Board had
jurisdiction over Ms. Moore’s appeal. The Board mailed
its order to Ms. Moore’s address of record on October 18,
2011. On October 26, 2011, she responded, requesting
“review based on the discrimination that was not ad-
dressed in the arbitration hearings.” App. of Resp’t 77.
On November 10, 2011, an administrative judge dis-
missed Ms. Moore’s third appeal under the doctrine of
collateral estoppel, finding the appeal apparently identi-
cal to her two prior appeals. The Board mailed its deci-
sion to Ms. Moore’s address of record. More than 18
months later, on June 11, 2013, Ms. Moore petitioned for
review. After receiving notice that her petition was
untimely, Ms. Moore asked the Board to set aside the
time limit for filing her petition. Her motion alleged that
she first received the Board’s November 10, 2011 decision
on May 29, 2013, when she went to a Regional Office to
check on the progress of her case. She argued that the
Board should waive the time limit because she was diag-
nosed with bronchitis in June 2013, she had been “some-
what homeless,” and she had “countless problems”
receiving her mail. App. of Resp’t 36.
In a final order, the Board denied Ms. Moore’s motion.
As required by 5 C.F.R. § 1201.22(b)(3), the Board pre-
sumed that Ms. Moore timely received the November 10,
2011 decision. Finding that Ms. Moore failed to rebut this
presumption and that her failure to monitor her case
amounted to negligence, the Board dismissed her appeal
as untimely. The Board also ordered that Ms. Moore’s
request for review of an arbitration decision based on
discrimination be forwarded to the clerk of the Board for
docketing.
Ms. Moore appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
4 MOORE v. MSPB
II
We must affirm the Board’s decision unless it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
required by law, rule, or regulation having been followed;
or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c).
Petitioners must request review of an initial Board
decision within 35 days after the decision issues, or within
30 days of receipt of the decision if received more than five
days after issuance. 5 C.F.R. § 1201.114(e).
The Board presumes that properly addressed corre-
spondence sent to the petitioner’s address of record was
duly delivered to the addressee. 5 C.F.R. § 1201.22(b)(3).
A petitioner “may not avoid service of a properly ad-
dressed and mailed decision by intentional or negligent
conduct which frustrates actual service.” Id. The Board
may excuse late filings, however, if a party shows good
cause. 5 C.F.R. § 1201.114(g). Considerations bearing on
whether or not there is good cause for an untimely filing
include the length of the delay, whether the appellant was
notified of the time limit, whether circumstances existed
beyond the appellant’s control that affected her ability to
comply with the deadline, whether the appellant was
negligent regarding the delay, and whether the appellant
suffered any “unavoidable casualty or misfortune” that
may have prevented timely filing. Zamot v. Merit Sys.
Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003) (citing
Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.
Cir. 1994)).
The Board found that Ms. Moore’s bronchitis—
diagnosed almost 18 months after the November 10, 2011
decision became final—could not excuse her failure to file
a timely petition. The Board also found that Ms. Moore
had not changed her address of record and, as required,
MOORE v. MSPB 5
presumed that its initial decision was duly delivered to
her. See 5 C.F.R. § 1201.22(b)(3).
Furthermore, the Board found Ms. Moore had signifi-
cant experience with Board procedures. Indeed,
Ms. Moore filed two prior appeals, and she responded to
Board inquiries regarding the appeals that were sent to
her address of record. On at least two occasions in 2011,
Ms. Moore responded within days of receiving Board
inquiries. Additionally, Ms. Moore stated that she knew
of problems receiving mail at the address of record.
Under our deferential standard of review, we cannot
conclude that the Board erred in dismissing Ms. Moore’s
appeal.
Ms. Moore alleges that the Board failed to consider
“discrimination” and submits evidence of a serious injury
in February 2011. But Ms. Moore’s discrimination claims
are not before us because the Board ordered its clerk to
docket these allegations separately from the allegations at
issue in this appeal. And we cannot address evidence of
Ms. Moore’s alleged February 2011 injury, as that evi-
dence was not part of the record before the Board. See
Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed.
Cir. 1990).
We have considered Ms. Moore’s remaining argu-
ments and find them unpersuasive.
AFFIRMED
No costs.