Barnes v. Merit System Protection Board ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOROTHEA BARNES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3058
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0025-I-1.
______________________
Decided: June 4, 2014
______________________
DOROTHEA BARNES, of Silver Spring, Maryland, pro se.
NICOLE DECRESCENZO, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before O’MALLEY, TARANTO, and CHEN, Circuit Judges.
2 BARNES v. MSPB
PER CURIAM.
Petitioner Dorothea Barnes (“Ms. Barnes”) appeals a
decision of the Merit System Protection Board (“Board”)
dismissing her petition for review of the Board’s Initial
Decision as untimely. As Ms. Barnes fails to demonstrate
that the Board abused its discretion in dismissing her
appeal, we affirm.
BACKGROUND
On September 7, 2012, the United States Equal Em-
ployment Opportunity Commission (“EEOC”) removed
Ms. Barnes from her GS-6 secretary position due to
alleged misconduct. Ms. Barnes challenged her removal
in an initial appeal to the Board e-filed on October 3,
2012. The Administrative Judge (“AJ”) ordered a status
conference for November 13, 2012. The AJ and the
EEOC’s counsel appeared for the conference, but Ms.
Barnes did not. At the conference, the EEOC’s counsel
claimed that it previously had been unable to reach Ms.
Barnes, despite repeated attempts. The AJ called Ms.
Barnes and left a voicemail requesting that Ms. Barnes
contact him immediately. Ms. Barnes failed to contact
the AJ.
On November 15, 2012, the AJ issued an “Order to the
Appellant” that required Ms. Barnes to contact the AJ by
phone or through electronic pleading as soon as possible.
The Order stated that, if Ms. Barnes failed to contact the
AJ by November 20, 2012, the AJ would issue an Order to
Show Cause why the appeal should not be dismissed with
prejudice for failure to prosecute. Again, Ms. Barnes
failed to contact the AJ.
On November 5, 2012, the EEOC sent a Notice of
Deposition to Ms. Barnes, scheduling her appearance for
December 12, 2012. Ms. Barnes responded to the Notice
of Deposition on November 19, 2012, requesting that the
BARNES v. MSPB 3
deposition be rescheduled for January 2013 due to a
family commitment in December 2012.
On November 21, 2012, the AJ issued the Order to
Show Cause and advised Ms. Barnes that she would need
to respond to the order by November 27, 2012. Ms.
Barnes again failed to contact the AJ, and, in a November
28, 2012 Initial Decision, the AJ imposed the sanction of
dismissal with prejudice under 5 C.F.R. § 1201.43(b)
(2014) for failure to comply with Board orders. Barnes v.
Equal Emp’t Opportunity Comm’n, No. DC-0752-13-0025-
I-1, 2012 MSPB LEXIS 6975, at *3 (M.S.P.B. Nov. 28,
2012) (“Initial Decision”). The AJ stated that Ms.
Barnes’s repeated failures to comply with his orders or
even attempt to contact him represented a “failure to
exercise basic due diligence.” Id. at *4. In the Initial
Decision, the AJ informed Ms. Barnes that the decision
would become final unless she filed a petition for review
by January 2, 2013. Id. at *5. A certificate of service
shows that the Initial Decision was served on Ms. Barnes
through electronic mail.
Ms. Barnes filed a petition for review on March 4,
2013. Ms. Barnes argued that her delay in filing the
petition occurred because she failed to open an email
containing the Initial Decision due to the “Thanksgiving
Holiday” and a “very long family commitment” that lasted
from early December 2012 through January 2013. Re-
spondent’s Appendix (“RA”) 29. Ms. Barnes also claimed
that she did not contact the AJ in November 2012 because
of confusion over a deposition notice she received from the
EEOC, and because she “did not anticipate any phone
calls” from the Board, only communications through
physical or electronic mail. RA30.
The Clerk of the Board informed Ms. Barnes on
March 19, 2013, that her petition for review was untimely
filed and requested that she file a Motion to Waive or Set
Aside the Time Limit—which Ms. Barnes filed on March
4 BARNES v. MSPB
23, 2013. 1 Ms. Barnes argued that her March 4, 2013
petition for review was “filed on a timely basis due to
conflicting expectations around January 2, 2013.” RA21.
Ms. Barnes stated that she was expecting approval of a
request to reschedule the EEOC’s deposition, originally
set for December 12, 2012, and had not received any
response as of January 2, 2013. Ms. Barnes also argued
that the lack of correspondence from the EEOC’s counsel
regarding the deposition “was . . . a contributing factor in
[her] filing a petition for review late.” RA22. Ms. Barnes
stated that, while she received a November 28, 2012 email
containing the Initial Decision dismissing her appeal, she
was “unaware” of the contents of the decision until after
the January 2, 2013 deadline due to the “Thanksgiving
Holiday” and a “family commitment that required [her]
time and assistance up until the later part of January[]
2013.” Id. Ms. Barnes also claimed that “[i]llness was not
a major factor which caused my petition to be late,” and
that it was a “family commitment which prevented me for
[sic] filing in the timely manner setforth [sic] by the
Board.” RA21.
In a December 24, 2013 Final Order, the Board dis-
missed Ms. Barnes’s petition for review as untimely filed.
Barnes v. Equal Emp’t Opportunity Comm’n, No. DC-
0752-13-0025-I-1, 2013 MSPB LEXIS 6339, at *8
(M.S.P.B. Dec. 24, 2013) (“Final Decision”). The Board
found that Ms. Barnes’s arguments regarding her “family
1 The Clerk’s notice indicated the wrong relevant
dates—mistakenly stating that the Initial Decision issued
on November 28, 2011 and that the deadline for the
petition for review was January 2, 2012, rather than
November 28, 2012 and January 2, 2013, respectively.
Ms. Barnes does not claim that this error caused her
untimely filing, nor can she given that it occurred after
her petition for review was filed.
BARNES v. MSPB 5
commitment” did not establish good cause for the delay
because Ms. Barnes failed to explain the nature of the
commitment or how it precluded her from filing a timely
petition for review. Id. at *5-6. The Board also noted
that, as an e-filer, Ms. Barnes had the responsibility to
monitor her case activity even as a pro se party. Id. The
Board determined that Ms. Barnes’s confusion over the
deposition date was not a justification for her late filing,
as it was unclear how the scheduling of the EEOC’s
deposition of Ms. Barnes related to her failure to meet the
January 2, 2013 deadline. Id. at *7.
Ms. Barnes timely appealed to this Court, and we
have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A)
(2012) and 28 U.S.C. § 1295(a)(9). 2
ANALYSIS
Our review of the Board’s decision is limited by stat-
ute. We only set aside the Board’s actions, findings, or
conclusions that are:
(1) arbitrary, capricious, an abuse of discretion, 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).
We review the factual findings of the Board regarding
untimeliness for substantial evidence. Espenschied v.
Merit Sys. Prot. Bd., 804 F.2d 1233, 1238 (Fed. Cir. 1986).
“[W]hether the regulatory time limit for an appeal [of an
2 Ms. Barnes filed an untimely letter brief in re-
sponse to the government’s informal brief. We have
nevertheless considered the arguments made therein due
to her pro se status.
6 BARNES v. MSPB
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, 1582 (Fed. Cir. 1994) (quoting Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc)).
When a petitioner files an untimely petition for re-
view, the petitioner must show that there was good cause
for the delay and that they “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). 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 [petitioner’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 prevented timely filing.” Id. Ms. Barnes thus
has the burden to demonstrate good cause for her delay
“with a statement explaining precisely why [she] was
unable to file [her] appeal on time.” Anderson v. Dep’t of
Justice, 999 F.2d 532, 534 (Fed. Cir. 1993).
The Board did not abuse its discretion in finding that
the petition for review was untimely, and that Ms. Barnes
failed to demonstrate good cause for the untimely filing.
The Board requires that a petition for review of an initial
decision be filed within 35 days after issuance of the
initial decision, or, if the petitioner demonstrates that
they received the initial decision more than five days after
it issued, within 30 days of receipt. 5 C.F.R.
§ 1201.114(e). The Initial Decision here clearly identified
that Ms. Barnes must file her petition for review by
January 2, 2013. Initial Decision, 2013 MSPB LEXIS at
*5. Ms. Barnes admits that she received the Initial
Decision by email upon issuance. That she chose not to
BARNES v. MSPB 7
open the email until after January 2, 2013 does not
change the timing of its receipt. Thus, substantial evi-
dence supports the Board’s finding that Ms. Barnes’s
petition was untimely.
We also find no abuse of discretion in the Board’s con-
clusion that Ms. Barnes failed to demonstrate good cause
for the untimely filing. Ms. Barnes justified her delay on
two grounds: (1) the “Thanksgiving holiday” and a “fami-
ly commitment” lasting from early December 2012
through January 2013; and (2) confusion over the EEOC’s
deposition date. Ms. Barnes provided the justification of
an out-of-state “family commitment” for her delay, but
failed to proffer any reason why that commitment pre-
cluded a timely filing. Ms. Barnes also stated that the
delay was not due to illness. As noted, moreover, Ms.
Barnes admitted to receiving the Initial Decision in a
November 28, 2012 email, even though she did not open
or read that email until February 2013. As the Board
correctly stated, Ms. Barnes was responsible for monitor-
ing the status of her case electronically as an e-filer.
Considering these factors, the Board did not abuse its
discretion in holding that Ms. Barnes failed to demon-
strate good cause based on her “family commitment.”
The Board also did not abuse its discretion in conclud-
ing that Ms. Barnes’s confusion over the timing of her
deposition did not amount to good cause for the untimely
filing. While Ms. Barnes purportedly did not receive any
further communication from the EEOC about reschedul-
ing the deposition after she responded to the Notice of
Deposition on November 19, 2012, this is unsurprising in
light of the Initial Decision dismissing her appeal with
prejudice. Further, Ms. Barnes fails to explain how the
confusion over the deposition date justified the untimely
filing of the petition for review. Ms. Barnes knew of her
future family commitments as of at least November 19,
2012, but failed to timely contact the AJ, the Board, or the
8 BARNES v. MSPB
EEOC regarding any confusion she may have experienced
due to the deposition’s timing.
We recognize that Ms. Barnes proceeded as a pro se
petitioner throughout the appeals process. Even account-
ing for her pro se status, however, we find that the Board
had ample evidence to support its finding. The Board
considered many appropriate factors, such as the extent of
her delay, her knowledge of and access to the Initial
Decision, and the limited details she provided to justify
her delay, in its analysis.
CONCLUSION
Because the Board did not abuse its discretion in con-
cluding that Ms. Barnes failed to meet her burden to
demonstrate good cause for her untimely filing, we affirm
the Board’s dismissal of her appeal.
AFFIRMED
COSTS
No costs.