Triplett v. Office of Personnel Management ( 2007 )

NOTE: This disposition is nonprecedential.
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2007-3240, -3241
LINDA TRIPLETT,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
------------------------------------------------
LINDA TRIPLETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Linda Triplett, of Chicago, Illinois, pro se.
Dawn S. Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,
Director, Martin F. Hockey, Jr., Assistant Director. Of counsel was Wade Plunkett,
Attorney, Office of Personnel Management, Washington, DC.
Calvin Morrow, Attorney, United States Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief were B. Chad Bungard,
General Counsel and Rosa M. Koppel, Deputy General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3240, -3241
LINDA TRIPLETT,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
---------------------------------------
LINDA TRIPLETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: October 4, 2007
___________________________
Before MICHEL, Chief Judge, LOURIE and GAJARSA, Circuit Judges.
PER CURIAM.
Linda Triplett (“Ms. Triplett”) appeals the Merit Systems Protection Board’s
(“Board”) decision dismissing her petition for review of a first appeal and affirming the
dismissal of a second appeal. Triplett v. Office of Pers. Mgmt., No. CH-844E-05-0089-
B-1, CH-844E-03-0754-I-1 (May 4, 2007). The Board determined that the petition for
review of the first appeal was untimely filed without a showing of good cause for delay
and therefore affirmed the dismissal of the second appeal based on the doctrine of res
judicata. Id. For the reasons stated herein, we affirm.
BACKGROUND
Ms. Triplett applied for disability retirement under the Federal Employees’
Retirement System (“FERS”) following an alleged on-the-job injury as a Distribution
Clerk with the United States Postal Service (“USPS”). The Office of Personnel
Management (“OPM”) determined that Ms. Triplett was not disabled within the meaning
of retirement law and denied her application. On August 26, 2003, Ms. Triplett filed a
timely appeal with the Board’s regional office. On August 29, 2003, the administrative
judge (“AJ”) mailed an acknowledgment and close-of-record orders to a 62nd Street
address that Ms. Triplett had provided three days earlier. USPS returned the mail to the
regional office indicating that Ms. Triplett’s address had changed to 43rd Street, but that
the forwarding time to that address had expired. The AJ then remailed the orders to the
43rd Street address by commercial overnight delivery service. The mail was again
returned as undeliverable.
In a memorandum of record, the AJ stated that because “the Board does not
have a proper address to forward the necessary documentation for the appellant to
pursue her appeal, it appears that I will have to dismiss this appeal for failure to
prosecute.” On January 26, 2004, after four months without any further contact from
Ms. Triplett, the AJ issued an initial decision in which he dismissed Ms. Triplett’s appeal
2007-3240, -3241 2
for failure to prosecute (“the first decision”). Ms. Triplett did not file a petition for review
(“PFR”), and the first decision became final on March 1, 2004.
Meanwhile, Ms. Triplett filed a second application for disability retirement that
OPM denied in both an initial decision and a reconsideration of that decision.
Ms. Triplett filed a second appeal with the Board’s regional office. In response, OPM
filed a motion to dismiss based on the doctrine of res judicata because it had
determined that the first and second applications were based on the same medical
condition. Ms. Triplett argued that she had never received the first decision dismissing
her first appeal for failure to prosecute. OPM rescinded its final reconsideration
decision, and the AJ dismissed Ms. Triplett’s second appeal without prejudice to refiling
upon the issuance of OPM’s new final decision.
Ms. Triplett filed a PFR. Because the record did not indicate that OPM would
issue a new final decision, the Board reopened the appeal on its own motion, vacated
the initial decision, and remanded the appeal to the regional office. The Board noted,
however, that “OPM may ultimately prevail with respect to its argument that the Board
should dismiss this appeal on the grounds of res judicata.” On remand, in an order
dated January 13, 2006, the AJ instructed Ms. Triplett: “I now inform the appellant that if
she wishes to file a petition for review of the January 26, 2004 decision, she must file
her petition with the Clerk of the Board, as stated in the appeal rights of both the first
and second initial decisions.” Ms. Triplett alleged to have just learned that the dismissal
of her first appeal “would carry over” to her second appeal. On August 4, 2006, the AJ
dismissed Ms. Triplett’s second appeal based on res judicata (“the second decision”).
2007-3240, -3241 3
Ms. Triplett filed a PFR on August 31, 2006, which the Board construed as a PFR
of both the first and second decisions. The Board found that the record established that
OPM provided Ms. Triplett with a copy of the first decision as part of its file following the
Board’s December 2005 remand of her second appeal to the regional office. The Board
noted that even if Ms. Triplett did not receive a copy of the first decision until February
22, 2006, as she claimed, her PFR was still untimely by more than five months. It
determined that Ms. Triplett’s actions did not reflect diligence or ordinary prudence
under the circumstances and therefore dismissed her PFR of the first decision as
untimely filed without a showing of good cause for delay. Because the first decision
remained final, the Board affirmed the second decision based on res judicata.
Ms. Triplett filed an appeal to this court from the Board’s decision. This court has
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in any appeal from the Board is limited. Generally, we
must affirm the decision of the Board 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). In appeals from the Board regarding disability
retirement under FERS, however, our review is even further limited. OPM’s decisions
regarding disability retirement are “final and conclusive and are not subject to review.”
See 5 U.S.C. § 8461(d). Thus, this court is “without authority to review the substantive
merits of disability determinations, or the factual underpinnings of such determinations.”
Gooden v. Office of Pers. Mgmt., 471 F.3d 1275, 1278 (Fed. Cir. 2006) (citing Lindahl v.
2007-3240, -3241 4
Office of Pers. Mgmt., 470 U.S. 768, 791 (1985)); accord Anthony v. Office of Pers.
Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995). Rather, review is limited to determining
“whether there has been a substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some like error going to the heart of the
administrative process.” Gooden, 471 F.3d at 1278 (quoting Lindahl, 470 U.S. at 791)
(internal quotation marks omitted).
Board regulations require that a PFR be filed within 35 days after the date of
issuance of the initial decision or, if the petitioner shows that the initial decision was
received more than five days after the date of issuance, within 30 days after the date
the petitioner received the initial decision. 5 C.F.R. § 1201.114(d). The Board may only
waive the time limit for filing a PFR if the petitioner shows good cause for delay.
5 C.F.R. § 1201.114(f). “Delay is excusable where, under the circumstances, a
petitioner exercises diligence or ordinary prudence.” Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992) (citing Phillips v. United States Postal Serv.,
695 F.2d 1389, 1391 (Fed. Cir. 1982)).
Accepting Ms. Triplett’s statement as correct that she failed to receive a copy of
the first decision until February 22, 2006, she had to file a PFR of that decision within
30 days. See 5 C.F.R. § 1201.114(d). However, she filed the PFR on August 31, 2006,
which was untimely by more than five months. Thus, the relevant time period for which
Ms. Triplett must establish good cause is from February 22, 2006, the date she received
a copy of the first decision, through August 31, 2006, the date she filed a PFR of that
decision.
2007-3240, -3241 5
Ms. Triplett has not provided an explanation of her activities during that period.
In her informal brief to this court, Ms. Triplett argues that the Board failed to account for
her “zero dollar income” from March 2001 through October 2003. She also renews
allegations that: (1) USPS sabotaged her first appeal by intentionally withholding
delivery of her mail in 2003; and (2) she received incorrect information during a visit to
the regional office on November 6, 2003. While these arguments and allegations may
address the reasons for Ms. Triplett’s delay in receiving a copy of the first decision until
February 22, 2006, they do not address the specific reasons for her delay in filing a PFR
of that decision until August 31, 2006.
Ms. Triplett also relies on the arguments set forth in the dissenting opinion below,
which concludes that the regional office could have forwarded her response to OPM’s
motion to dismiss to the Board to be processed as a timely PFR of the first decision.
The regional office, however, did not forward that response, nor was it under an
obligation to do so. Petitioners are responsible for filing timely PFRs with the Board in
accordance with the instructions provided at the end of the decision. Significantly, the
AJ’s January 13, 2006 order specifically instructed Ms. Triplett to file a PFR of the first
decision. Armed with this information, Ms. Triplett did not exercise diligence or ordinary
prudence in waiting until the Board actually dismissed her second appeal based on res
judicata. “A petitioner who ignores an order of the Administrative Judge does so at his
or her peril.” Mendoza, 966 F.2d at 653.
Under these circumstances, we do not find a “substantial departure from
important procedural rights, a misconstruction of the governing legislation, or some like
error going to the heart of the administrative process” in the Board’s decision to deny
2007-3240, -3241 6
Ms. Triplett a waiver of the regulatory time limit for failure to show good cause for delay.
See Gooden, 471 F.3d at 1278 (quoting Lindahl, 470 U.S. at 791).
CONCLUSION
We conclude that the Board properly dismissed Ms. Triplett’s petition for review
of the first appeal as untimely filed without a showing of good cause for delay and
properly affirmed the dismissal of the second appeal based on the doctrine of res
judicata. The decision of the Board is therefore affirmed.
No costs.
2007-3240, -3241 7