White v. Merit Systems Protection Board , 553 F. App'x 979 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEELAND O. WHITE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3146
______________________
Petition for review of the Merit Systems Protection
Board in No. DA3330120297-I-1.
______________________
Decided: January 14, 2014
______________________
LEELAND O. WHITE, of El Paso, Texas, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before PROST, WALLACH, and CHEN, Circuit Judges.
2 WHITE v. MSPB
PER CURIAM.
Leeland O. White appeals from an order of the Merit
Systems Protection Board (“Board”) denying his petition
for review of a decision by the administrative judge dis-
missing his claims for lack of jurisdiction, on the basis
that the petition for review was untimely filed without
good cause for delay. Because the Board did not abuse its
discretion and acted in accordance with the law, we
affirm. We also dismiss Mr. White’s motion to remand his
case to the Office of Personnel Management (“OPM”), as
we lack jurisdiction over his untimely filed request for
judicial review.
BACKGROUND
Mr. White was an applicant for employment as a Pub-
lic Safety Officer with the International Boundary and
Water Commission: United States and Mexico (“Agency”),
a position advertised by the San Antonio Services Branch
of OPM. The body of the vacancy announcement for the
position included veterans’ preference language, as well
as a list of key requirements that included passing a pre-
employment physical as a condition of employment. Mr.
White was found to be qualified and OPM referred him for
positions in Texas. He was also informed of the pre-
employment screening process scheduled on March 10,
2012, which included a physical fitness assessment. Mr.
White participated in the screening, but failed to complete
a component of the fitness assessment. The Agency
subsequently removed him from consideration for the
position.
Mr. White appealed the Agency’s decision, which noti-
fied him of his right to appeal to the Board under the
Veterans Employment Opportunities Act (“VEOA”) on
March 21, 2012, after having initially filed a complaint
with the Department of Labor. On March 30, 2012, the
Board advised Mr. White that it might not have jurisdic-
tion over his appeal and gave him an opportunity to
WHITE v. MSPB 3
submit argument and evidence to establish the Board’s
jurisdiction. Mr. White responded on April 11, 2012,
arguing that the Board had jurisdiction over his claim as
an individual right of action (“IRA”) pursuant to 5 U.S.C
§ 1221 and that VEOA did not apply to his case. On June
27, 2012, the administrative judge issued an initial deci-
sion dismissing Mr. White’s VEOA appeal on the grounds
that Mr. White had failed to raise a nonfrivolous argu-
ment that the Agency had violated a regulation or statute
related to veterans’ preference and that Mr. White had
failed to show that he had exhausted his IRA remedy
before the Office of the Special Counsel.
The administrative judge’s initial decision was sent to
Mr. White, including a “Notice to Appellant” advising that
the initial decision was to become final on August 1, 2012,
unless a petition for review was filed by that date or the
Board reopened the case on its own motion. The Notice
further advised Mr. White that the date the final decision
issues “is an important date because it is usually the last
day on which you can file a petition for review with the
Board,” and that 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 following paragraphs provided instructions for filing
a petition for review. Under the heading entitled “Board
Review,” Mr. White was informed that he could request
Board review by filing a petition for review by the later of
the date on which the initial decision became final or
thirty days after receipt of the initial decision if it was
received more than five days after the date of issuance.
The instructions also provided the address of the Clerk of
the Board as well as instructions for filing the petition
electronically. The section describing the process for
Board review was followed immediately by a section
entitled “Judicial Review,” which stated that if Mr. White
was “dissatisfied with the Board’s final decision,” he could
file a petition with this court pursuant to 5 U.S.C. § 7703,
4 WHITE v. MSPB
and provided this court’s address. This section of the
instructions also indicated that to be timely, a petition
“must be received by the court no later than 60 calendar
days after this initial decision becomes final.”
On August 21, 2012, Mr. White faxed the Board’s re-
gional office a pleading entitled “Rule 59 Fed. Civ. P.
Motion to Amend the Judgment” challenging the initial
decision’s dismissal and seeking relief from the Board.
The regional office forwarded the pleading to the Clerk of
the Board, and it was docketed as a petition for review.
On August 29, 2012, the Board notified Mr. White that
the petition for review was untimely filed without an
accompanying motion to accept the petition as timely or
showing good cause for an untimely filing, including an
affidavit or sworn statement of facts, pursuant to 5 C.F.R.
§ 1201.114(f). The Board gave Mr. White notice that he
could submit such a motion and statement of facts by
September 13, 2012. On October 1, 2012, Mr. White filed
a reply to the Agency’s response to his petition on the
merits, but only addressed the untimely filing by attach-
ing an unsworn “certificate of service.”
On June 6, 2013, the Board issued a final order find-
ing that Mr. White’s petition for review of the initial
decision was untimely filed without good cause shown for
the delay. On July 8, 2013, Mr. White filed a timely
request for judicial review of that order (related to the
timeliness of his petition for review). While Mr. White’s
appeal was pending, he filed a motion for limited remand
of his case to the OPM on November 21, 2013.
DISCUSSION
Our review of the Board’s decisions is limited by stat-
ute. Pursuant to 5 U.S.C. § 7703(c), we set aside any
action, findings, or conclusions found to be: (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
WHITE v. MSPB 5
or (3) unsupported by substantial evidence. Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc). “[W]hether the regulatory time limit for an
appeal 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.” Id.
To seek the Board’s review of the administrative
judge’s initial decision on his case, Mr. White would have
needed to submit his petition for review by August 1,
2012. The record shows that the Board’s regional office
did not receive a petition for review until August 20, 2012.
Because Mr. White’s petition was entitled a “motion to
amend the judgment” and included a request for relief
from the Board to compel the Agency to hire him, the
Board did not abuse its discretion in interpreting Mr.
White’s petition as an untimely filed petition for review. 1
The only evidence that Mr. White submitted to estab-
lish good cause for the untimely filing of his petition for
review was the unsworn “certificate of service” that he
attached to his October 1 reply to the Agency’s argu-
ments. This document indicated that he had sent a
petition to the regional office to the wrong address on July
24, 2012, which would have been timely.
1 While it has no effect on the outcome of this case,
we do observe that the Board’s instructions attached to its
initial decision could be clearer in setting out the signifi-
cance of the different deadlines for the alternative ave-
nues for review. The instructions simply include the text
describing the process for Board review immediately
followed by the text describing judicial review. It may not
be clear to a pro se petitioner that even once a final deci-
sion issues and the deadline for Board review passes there
are still sixty days left to make a timely filing for judicial
review.
6 WHITE v. MSPB
As the Board discussed in its order, Mr. White’s error
in addressing his filing may have sufficed as good cause
for an untimely filing, especially given that he is a pro se
petitioner. However, he did not provide any further
information or explanation regarding his good faith effort
to file his petition in a timely manner. It was Mr. White’s
burden to respond to the order to show good cause for the
delay “in a timely manner with a statement explaining
precisely why he was unable to file his appeal on time.”
Anderson v. Dep’t of Justice, 999 F.2d 532, 534 (Fed. Cir.
1993) (emphasis added). The Board, therefore, did not
abuse its discretion in finding that Mr. White did not
show good cause for the untimely filing of his petition for
review. Accordingly, we must affirm the Board’s dismis-
sal of his appeal.
Finally, given that Mr. White did not send this court
any petition for review until July 8, 2013, we lack juris-
diction either to review his appeal of the Board’s initial
decision or to remand his case to the OPM, as we do not
have the authority to waive a statutory deadline. See
Pinat v. Office of Pers. Mgmt., 931 F.2d 1544, 1546 (Fed.
Cir. 1991).
CONCLUSION
For the foregoing reasons, we affirm the Board’s dis-
missal of Mr. White’s appeal of the Board’s final decision
as untimely and we dismiss his motion for limited re-
mand.
AFFIRMED
COSTS
Each party shall bear its own costs.