Lachiewicz v. Merit System Protection Board , 566 F. App'x 927 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RENATA M. LACHIEWICZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3052
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-10-0490-I-1.
______________________
Decided: June 5, 2014
______________________
RENATA M. LACHIEWICZ, of Chicago, 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
was BRYAN G. POLISUK, General Counsel.
______________________
Before NEWMAN, LOURIE, and DYK, Circuit Judges.
2 LACHIEWICZ v. MSPB
PER CURIAM.
Renata Lachiewicz seeks review of the decision of the
Merit Systems Protection Board (“Board”), dismissing her
petition as untimely filed and forwarding her claims
alleging breach of a settlement agreement to the appro-
priate regional office. We affirm.
BACKGROUND
Ms. Lachiewicz was employed as an immigration of-
ficer in the Vermont Service Center of the Department of
Homeland Security, United States Citizenship and Immi-
gration Services (“agency”). On May 17, 2010, the agency
removed Ms. Lachiewicz from her position. Ms.
Lachiewicz appealed the removal to the Northeastern
Regional Office of the Board, but entered into a settle-
ment agreement with the agency before the appeal was
heard. The administrative judge reviewed the agreement
and concluded that the parties had understood and volun-
tarily entered into it. Ms. Lachiewicz’s removal appeal
was then dismissed based on the settlement agreement.
The Board’s decision stated: “This initial decision will
become final on September 29, 2010 unless a petition for
review is filed by that date or the Board reopens the case
on its own motion.” Respondent’s Appendix (“R.A.”) 2. It
also stated that Ms. Lachiewicz could file a petition for
enforcement with the regional Board office after the
decision became final, if she had reason to believe the
agency was not complying with the agreement.
More than two years later, on December 19, 2012, Ms.
Lachiewicz filed a petition for review asking the Board to
reopen her removal appeal. She alleged that she had
entered into the agreement as a result of duress and that
the agency had not complied with the agreement. Ms.
Lachiewicz filed a motion requesting a waiver of the time
limit for her review petition based on mental impairment
and physical injuries. The Board denied Ms. Lachiewicz’s
LACHIEWICZ v. MSPB 3
motion, explaining that she did not identify the period
during which she was impaired, did not provide evidence
of her medical condition or explain why such evidence was
unavailable, and did not describe the effects of her medi-
cal condition. The Board found that she had alleged
breach of the agreement, but that these allegations did
not constitute grounds for waiving the filing time limit.
The Board dismissed the petition for review of the Board’s
dismissal as untimely filed. The Board forwarded Ms.
Lachiewicz’s claims that the agency was not complying
with the agreement to the regional office for adjudication.
Ms. Lachiewicz petitioned this court for review of the
Board’s decision. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our scope of review in an appeal from a Board deci-
sion is limited. Paine v. Merit Sys. Prot. Bd., 467 F.3d
1344, 1346 (Fed. Cir. 2006). We must affirm the Board’s
decision unless it is “(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); see also Rocha v.
Merit Sys. Prot. Bd., 688 F.3d 1307, 1310 (Fed. Cir. 2012);
Paine, 567 F.3d at 1346. A petitioner “bears a ‘heavy
burden’ to overturn the Board’s determination that good
cause has not been shown for her untimely filing.” Tur-
man-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280, 1282
(Fed. Cir. 2011) (quoting Zamot v. Merit Sys. Prot. Bd.,
332 F.3d 1374, 1377 (Fed. Cir. 2003) & citing Mendoza v.
Merit Sys. Prot. Bd., 966 F.3d 650, 653 (Fed. Cir. 1992)
(en banc)).
A petition for review of a Board decision must be filed
within 35 days of the decision’s issuance or within 30 days
of the petitioner’s receipt of the decision if the petitioner
4 LACHIEWICZ v. MSPB
shows that she received the decision more than 5 days
after it issued. 5 C.F.R. § 1201.114(e); see
5 U.S.C § 7701(e)(1). If the petition is filed late, the Board
may waive the time limit if the petitioner establishes good
cause for the delay. Rocha, 688 F.3d at 1310; Zamot, 332
F.3d at 1377 (Fed. Cir. 2003). To obtain a waiver, a peti-
tioner must provide “[t]he reasons for failing to request an
extension before the deadline for the submission, and a
specific and detailed description of the circumstances
causing the late filing, accompanied by supporting docu-
mentation or other evidence.” 5 C.F.R. § 1201.114(g).
Although the Board’s regulations do not define the cir-
cumstances that constitute good cause, relevant consider-
ations include:
the length of the delay; whether appellant was no-
tified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the con-
trol of the appellant which affected his ability to
comply with the time limits; the degree to which
negligence by the appellant has been shown to be
present or absent; circumstances which show that
any neglect involved is excusable neglect; a show-
ing of unavoidable casualty or misfortune; and the
extent and nature of the prejudice to the agency
which would result from waiver of the time limit.
Alonzo v. Dep’t of Air Force, 4 M.S.P.R. 180, 184 (1980)
(footnotes omitted); see also Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo, 4
M.S.P.R. at 184). With respect to delays allegedly result-
ing from medical impairment, the Board has held that
petitioners must “affirmatively identify medical evidence
that addresses the entire period of delay and explain how
the illness prevented a timely filing.” Ford-Clifton v. Dep’t
of Veteran Affairs, 661 F.3d 655, 659 (Fed. Cir. 2011)
(affirming Board where there was “no accompanying
explanation of how th[e] condition [deep vein thrombosis]
LACHIEWICZ v. MSPB 5
prevented a timely filing” (citing Jerusalem v. Dep’t of the
Air Force, 107 M.S.P.R. 660, 663, aff’d, 280 Fed. App’x 973
(Fed. Cir 2008); Lacy v. Dep’t of Navy, 78 M.S.P.R. 434,
437 (1998)); see also Turman-Kent, 657 F.3d at 1282 (“The
Board did not abuse its discretion in demanding a well-
documented explanation of the cause for [the petitioner’s
six-year] delay in filing her appeal.”).
Here, the Board found that Ms. Lachiewicz did not
establish good cause. We see no error in that determina-
tion. Ms. Lachiewicz asserted only that she “suffered []
temporary mental instability, as an effect of losing her
job” and “also sustained physical injuries, due to the on
the job accident, on February 02, 2010.” R.A. 76. She did
not identify evidence related to her alleged mental and
physical impairment. She did not provide any information
about the duration or dates of her alleged medical prob-
lems and did not explain how they prevented her from
filing a timely petition.
The Board did not err in finding that Ms. Lachiewicz
did not establish good cause for waiving the time limit for
her petition based on her claims regarding the settlement
agreement. The Board recognized that good cause might
exist based on newly-discovered evidence establishing the
invalidity of the settlement agreement, but Ms.
Lachiewicz did not raise such an argument or present
such evidence before the Board and has not done so before
this court on appeal.
The Board also did not err in forwarding Ms.
Lachiewicz’s claims of breach of the settlement agreement
to the regional office. The governing regulations permit
parties to petition the Board “for enforcement of the terms
of a settlement agreement that has been entered into the
record for the purpose of enforcement in an order or
decision under the Board's appellate jurisdiction.” 5
C.F.R. § 1201.182(a). But “[t]he petition must be filed
6 LACHIEWICZ v. MSPB
promptly with the regional or field office that issued the
initial decision.” Id. The Board has held that “[w]here
allegations of noncompliance are raised for the first time
before the full Board, the Board will forward the submis-
sion to the appropriate regional office for adjudication as
a petition for enforcement.” Harris v. U.S. Postal Serv., 59
M.S.P.R. 222, 225 (1993) (citing Sharkey v. Dep’t of
Transp., 56 M.S.P.R. 156, 158 (1992); Davis v. Dep’t of
Navy, 55 M.S.P.R. 109, 112 (1992)). Ms. Lachiewicz has
not established any abuse of discretion by the Board in
sending her breach claims for adjudication by the regional
office.
AFFIRMED
COSTS
No costs.