Burnett v. Merit Systems Protection Board , 513 F. App'x 960 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MELISSA L. BURNETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3176
______________________
Petition for review of the Merit Systems Protection
Board in No. CH1221110614-W-1.
______________________
Decided: March 12, 2013
______________________
MELISSA L. BURNETT, of Madison, Illinois, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
2 MELISSA BURNETT v. MSPB
Before NEWMAN, PLAGER, and PROST, Circuit Judges.
PER CURIAM.
Melissa L. Burnett seeks review of a decision of the
Merit Systems Protection Board (“Board”) dismissing her
petition for review as untimely. We affirm.
BACKGROUND
Between June 13, 2006 and March 7, 2008, Ms. Bur-
nett worked as a Program Assistant at the Department of
Housing & Urban Development (“HUD”) in St. Louis,
Missouri. On December 21, 2010, she filed a complaint
with the Office of Special Counsel (“OSC”), alleging that
certain agency personnel (a) obstructed her advancement
and curtailed her employment benefits at HUD by refus-
ing to correct an erroneous appointment, and (b) retaliat-
ed against her by canceling her employment applications,
giving her the “runaround treatment” with respect to
open positions, and refusing to process her claims for
advancement after she blew the whistle on HUD’s viola-
tions described in (a). On March 23, 2011, the OSC sent
Ms. Burnett a letter informing her of her right to seek
corrective action with the Board under 5 U.S.C.
§§ 1214(a)(3) (Whistleblower Protection Act) and 1221
(individual right of action). The letter advised Ms. Bur-
nett that her request for corrective action must be filed
with the Board “within 65 days after the date of th[e]
letter”—or by May 27, 2011.
Ms. Burnett filed her individual right of action appeal
with the Board on June 14, 2011—eighteen days late. On
June 28, 2011, the agency filed a motion to dismiss for
untimeliness of the appeal. On July 28, 2011, Ms. Bur-
nett filed a response to the motion to dismiss, stating that
the delay in filing her appeal with the Board was caused
by a family medical emergency and inclement weather
that caused damage to her house. Along with the declara-
tion, Ms. Burnett submitted documentation supporting
MELISSA BURNETT v. MSPB 3
her claims. In addition, Ms. Burnett asked the Board to
grant her leniency in meeting the filing deadline in ac-
cordance with the policy notice issued by the Board, dated
February 16, 2010. That policy allowed the Board to
accept late-filed submissions that include a statement
that the delay was due to inclement weather.
On September 7, 2011, the administrative judge is-
sued an Order to Show Cause why Ms. Burnett’s appeal
should not be dismissed for untimeliness. That order
enumerated a number of ways Ms. Burnett could make
such a showing, including demonstrating that she did not
receive OSC’s notification letter until five days after its
date of issuance or that the agency engaged in some
affirmative conduct that affected the timeliness of her
appeal. On September 19, 2011, Ms. Burnett responded
with a declaration stating that her untimely appeal was
the result of a medical condition (bilateral tendonitis),
which was aggravated by the repetitive typing necessitat-
ed by her work as a seasonal tax preparer during “tax
season.” The administrative judge issued an Initial
Decision dismissing Ms. Burnett’s appeal as untimely on
October 5, 2011, having found that she failed to show that
she received the March 23, 2011 OSC notification letter
more than five days after its issuance or that the agency
engaged in conduct that affected the timeliness of her
appeal. After acknowledging the various reasons Ms.
Burnett stated for not being able to meet the filing dead-
line, the administrative judge noted that she lacked
jurisdiction over the appeal because the Whistleblower
Protection Act (“WPA”) accorded her “no authority to
waive the statutory time limit for filing an IRA appeal for
good cause shown under 5 C.F.R. § 1201.22(c).”
On October 12, 2011, Ms. Burnett petitioned the
Board for review of the October 5, 2011 Initial Decision.
The agency filed a response on November 4, 2011. The
Board issued its Final Order on June 11, 2012, adopting
the Initial Decision and affirming the dismissal of the
4 MELISSA BURNETT v. MSPB
appeal as untimely. The Board found that Ms. Burnett
did not make the necessary showing to justify reversing
the Initial Decision, and noted that it had “no authority to
waive the statutory time limit for filing an IRA appeal for
good cause.” Ms. Burnett now appeals the Board’s order
dismissing her petition for review. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The WPA provides that when the OSC notifies an ap-
pellant that its investigation of the appellant’s claims has
been terminated, the appellant may file an individual
right of action (“IRA”) appeal with the Board if “no more
than 60 days have elapsed since notification was provid-
ed” to the appellant. 5 U.S.C. § 1214(a)(3)(A)(ii). The
Board’s regulations implementing this subsection provide
that an appeal must be filed
[n]o later than 65 days after the date of issuance
of the Special Counsel’s written notification to the
appellant that it was terminating its investigation
of the appellant’s allegations or, if the appellant
shows that the Special Counsel’s notification was
received more than 5 days after the date of issu-
ance, within 60 days after the date the appellant
received the Special Counsel’s notification[.]
5 C.F.R. § 1209.5(a)(1).
Our scope of review is limited in an appeal from a de-
cision of the Board dismissing a petition for review for
being untimely. Because the Board has “broad discretion
to control its own docket,” we must “affirm the board’s
decision to dismiss an untimely filed petition for review
unless the decision is shown to have been arbitrary, an
abuse of discretion, or otherwise not in accordance with
law.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388
(Fed. Cir. 1994) (quotation marks omitted); see 5 U.S.C.
§ 7703(c). It is undisputed in this case that Ms. Burnett’s
MELISSA BURNETT v. MSPB 5
petition was not filed within sixty-five days after the
issuance of OSC’s termination notice on March 23, 2011.
It was therefore untimely under 5 U.S.C. § 1214(a)(3).
Thus, the only question before this court on appeal is
whether the Board correctly dismissed the appeal based
on its lack of authority to waive this time limit.
The Board correctly found that the time limit for filing
an IRA appeal cannot be waived for good cause. Wood v.
Dep’t of the Air Force, 54 M.S.P.R. 587, 592 (1992) (stating
that because the WPA set a statutory time limit without
providing for extensions of time, an “IRA appeal cannot be
waived for good cause shown under 5 C.F.R.
§ 1201.22(c)”). The WPA did not specify any circumstanc-
es in which the time limit will be waived, and therefore,
such a waiver provision may not be read into the statute.
See Speker v. Office of Pers. Mgmt., 45 M.S.P.R. 380, 385
(M.S.P.B. 1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991);
Wood, 54 M.S.P.R. at 591–93. Accordingly, Ms. Burnett’s
numerous submissions purporting to show “good cause” do
not help her in attaining a waiver of the statutory time
limit.
The Board also adopted the administrative judge’s
findings that Ms. Burnett failed to show that (a) she
received the March 23, 2011 OSC notification more than
five days after its issuance, (b) the agency engaged in
affirmative conduct that affected the timeliness of her
appeal, or (c) she failed to receive any notice from the
OSC—any of which showings would have sufficed as
reason for further consideration of whether her appeal
should not be dismissed. We agree. The record is devoid
of any factual allegation by Ms. Burnett that she is enti-
tled to leniency on the timeliness issue based on these
grounds.
We find no error in the Board’s rationale for dismiss-
ing Ms. Burnett’s petition for untimeliness. We also
cannot say that, on the facts of this case, the Board’s
6 MELISSA BURNETT v. MSPB
dismissal of Ms. Burnett’s petition for review as untimely
was arbitrary, an abuse of discretion, or otherwise errone-
ous under the law.
AFFIRMED
COSTS
Each party shall bear its own costs.