Weiss v. Merit Systems Protection Board , 603 F. App'x 938 ( 2015 )


Menu:
  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    ROBIN WEISS,
    Petitioner
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent
    ______________________
    2014-3105
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. DC-315H-10-0671-B-1.
    ______________________
    Decided: February 10, 2015
    ______________________
    ROBIN WEISS, Kensington, MD, pro se.
    SARA B. REARDEN, Office of the General Counsel, Mer-
    it Systems Protection Board, Washington, DC, for re-
    spondent. Also represented by MICHAEL ANTON CARNEY,
    BRYAN G. POLISUK.
    ______________________
    Before WALLACH, TARANTO, and HUGHES, Circuit Judges.
    2                                               WEISS   v. MSPB
    PER CURIAM.
    After untimely submitting her petition for review of
    the Merit Systems Protection Board’s initial decision,
    Robin Weiss asked the Board to waive its timely filing
    requirement for good cause.            The Board denied
    Ms. Weiss’s request, finding that she had not shown that
    her alleged medical illness and technical issues prevented
    her from timely filing. Because the Board’s decision was
    not an abuse of discretion, we affirm.
    I
    On June 4, 2010, the Department of the Interior ter-
    minated Ms. Weiss’s probationary appointment as a Land
    Law Assistant with the Department’s Bureau of Land
    Management in Springfield, Virginia. Ms. Weiss ap-
    pealed the Department’s termination with the Merit
    Systems Protection Board, alleging discrimination on the
    basis of age, marital status, race, religion, national origin;
    and alleging retaliation for her participation in filing a
    complaint with the Equal Employment Opportunity
    Commission.
    On February 3, 2011, the Administrative Judge is-
    sued an initial decision finding that the Board did not
    have jurisdiction over Ms. Weiss’s claims because she was
    terminated during her probationary period, she failed to
    make a non-frivolous allegation of political or marital
    status discrimination, and she failed to show that she
    exhausted the administrative remedies available for
    Whistleblower Protection Act claims. Ms. Weiss appealed
    this decision. The Board affirmed the dismissal of the
    discrimination claims, but vacated the dismissal of the
    Whistleblower Protection Act claims for failure to exhaust
    her administrative remedies. The Board ordered the
    Administrative Judge to fully inform the parties of the
    jurisdictional requirements in an individual-right-of-
    action Whistleblower Protection Act appeal.
    WEISS   v. MSPB                                            3
    On November 21, 2012, the Administrative Judge is-
    sued an initial decision finding that Ms. Weiss had not
    proven by a preponderance of the evidence that the De-
    partment retaliated against her due to disclosures pro-
    tected under the Whistleblower’s Protection Act.
    Accordingly, the Administrative Judge denied Ms. Weiss’s
    request for corrective action.
    On December 19, 2012, Ms. Weiss requested an ex-
    tension of time to file her petition for review of the Admin-
    istrative Judge’s November 21, 2012 decision. The Board
    granted Ms. Weiss’s request and extended the deadline
    from December 26, 2012 to January 7, 2013.
    Ms. Weiss filed her petition for review on January 8,
    2013. On January 15, 2013, the Board—apparently
    unaware that it had extended Ms. Weiss’s deadline to
    January 7, 2013—notified Ms. Weiss that her petition
    appeared to be untimely because it was not filed by De-
    cember 26, 2012. The Board’s notification letter stated
    that a petition for review that appears to be untimely
    must be filed with a motion (1) to accept the filing as
    timely, and/or (2) to waive the time limit for good cause.
    The notification letter also stated that any such motion
    Ms. Weiss may wish to file must be filed by January 30,
    2013.
    On July 22, 2013—over six months later—Ms. Weiss
    filed a “motion to accept filing as timely or to ask the
    Board to waive or set aside the time limit.” Resp’t’s App.
    44–59. This motion claimed that Ms. Weiss’s petition was
    untimely due to “technical issues regarding e-filing and
    other circumstances[.]” 
    Id. On December
    27, 2013, the Board issued an order, ex-
    plaining that its January 15, 2013 notification letter
    misstated the petition for review’s deadline as December
    26, 2012 instead of January 7, 2013. Due to this error,
    the Board granted Ms. Weiss an additional opportunity
    through January 6, 2014, to submit additional evidence
    4                                            WEISS   v. MSPB
    and argument supporting her motion for leave to waive
    the timely filing requirement.
    On January 7, 2014, one day after the deadline,
    Ms. Weiss submitted another motion to waive the Board’s
    time limit. In this motion, Ms. Weiss claimed that her
    petition was untimely because she was ill. She made no
    mention of the technical issues she alleged in her July 22,
    2013 motion.
    On February 28, 2014, the Board issued a final order
    dismissing Ms. Weiss’s petition as untimely filed. The
    Board noted that although her deadline had been extend-
    ed to January 7, 2013, Ms. Weiss did not file her petition
    until January 8, 2013. The Board acknowledged that
    Ms. Weiss was pro se and that the 1-day delay was mini-
    mal, but found that she had failed to show good cause for
    the delay. Ms. Weiss appeals.
    II
    A petition for review of an administrative judge’s de-
    cision must be filed with the Board within 35 days. 5
    C.F.R. § 1201.114(e). The Board has discretion to waive
    this requirement if a party requests such waiver and
    shows good cause. 5 C.F.R. §§ 1201.12 and 1201.114(f),
    (g). Petitioners seeking a waiver must file “[a] specific
    and detailed description of the circumstances causing the
    late filing, accompanied by supporting documentation or
    other evidence.” Ford-Clifton v. Dep’t of Veterans Affairs,
    
    661 F.3d 655
    , 659 (Fed. Cir. 2011) (citation omitted).
    Although the length of delay is a factor the Board must
    consider in its analysis of whether to waive the timely
    filing requirement, it is not the only factor to be consid-
    ered. Walls v. Merit Sys. Prot. Bd., 
    29 F.3d 1578
    , 1582
    (Fed. Cir. 1994) (explaining that other factors properly
    considered by the Board include: the appellant’s notice of
    the time limit, the existence of circumstances beyond the
    appellant’s control, the appellant’s negligence, any excus-
    able neglect, unavoidable casualty or misfortune, and the
    WEISS   v. MSPB                                          5
    extent and nature of prejudice to the agency) (citation
    omitted).
    “[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.” Mendoza v. Merit Sys. Prot. Bd., 
    966 F.2d 650
    ,
    653 (Fed. Cir. 1992) (en banc). Accordingly, an appellant
    bears a “heavy burden” to overturn the Board’s determi-
    nation that good cause has not been shown for an untime-
    ly filing. Turman-Kent v. Merit Sys. Prot. Bd., 
    657 F.3d 1280
    , 1282 (Fed. Cir. 2011) (internal quotation omitted).
    Further, we must affirm the Board’s underlying factual
    determinations unless they are not supported by substan-
    tial evidence. 5 U.S.C. § 7703(c).
    Ms. Weiss argues that we should reverse the Board
    because her failure to timely file a petition was due to
    medical illness and technical issues with the Board’s e-
    filing system. Because substantial evidence supports the
    Board’s findings on each of these arguments, we must
    affirm.
    Substantial evidence supports the Board’s finding
    that Ms. Weiss did not show that her medical illness
    prevented her from timely filing during the entire delay
    period. The only evidence Ms. Weiss provided was a
    statement from an acquaintance that Ms. Weiss was sick
    with the flu from “about December 2012/January 2013.”
    Resp’t’s App. 3 (citing Pet. For Review File, Tab 26 at 4).
    This does not show that Ms. Weiss was sick throughout
    the entire period of delay. See 
    Ford-Clifton, 661 F.3d at 659
    (affirming the Board’s denial of a motion to waive the
    timely filing requirement because the petition did not
    “affirmatively identify medical evidence that addresses
    the entire period of delay and explain how the illness
    prevented a timely filing”). Additionally, Ms. Weiss does
    not explain why her illness was sufficiently serious to
    6                                             WEISS   v. MSPB
    prevent her from timely filing. Ms. Weiss was well
    enough to file a motion to extend her initial deadline
    during the period she claims to have had the flu, and she
    has not alleged or provided any evidence suggesting that
    her illness intensified after her initial extension request.
    Additionally, Ms. Weiss offered no evidence support-
    ing her allegation that she encountered technical issues
    with the Board’s e-filing system. She did not state when
    she had the alleged issue, what the alleged issue was, or
    explain why that alleged issue prevented her from timely
    filing.
    We have considered Ms. Weiss’s other arguments and
    find them unpersuasive. Accordingly, we conclude that
    the Board’s factual findings were supported by substan-
    tial evidence, and, based on these findings, conclude that
    the Board did not abuse its discretion in denying
    Ms. Weiss’s motion to waive the timely filing requirement.
    AFFIRMED
    No costs.
    

Document Info

Docket Number: 2014-3105

Citation Numbers: 603 F. App'x 938

Judges: Wallach, Taranto, Hughes

Filed Date: 2/10/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024