Escudero v. Merit Systems Protection Board ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDWARD E. ESCUDERO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3020
__________________________
Petition for review of the Merit Systems Protection
Board in MSPB Docket No. DA0752100118-I-1.
____________________________
Decided: June 9, 2011
____________________________
EDWARD E. ESCUDERO, of The Woodlands, Texas, pro
se.
SARA B. REARDEN, 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.
__________________________
ESCUDERO v. MSPB 2
Before LOURIE, LINN and DYK, Circuit Judges.
PER CURIAM.
Edward E. Escudero seeks review of the final decision
of the Merit Systems Protection Board (“the Board”)
dismissing his petition for review as untimely filed with-
out a showing of good cause for the delay. See Escudero v.
Dep’t of Health & Human Servs., No. DA0752100118-I-1
(M.S.P.B. Sept. 30, 2010). Because the Board did not
abuse its discretion, we affirm.
BACKGROUND
Escudero was employed as a Public Health Advisor by
the Department of Health and Human Services, Centers
for Disease Control and Prevention (CDC), Division of
Sexually Transmitted Disease Prevention. In 1982,
Escudero signed a document entitled “Acknowledgement
of Understanding of Reassignment Requirement,” in
which Escudero indicated that he understood that the
CDC may relocate him during the course of his employ-
ment. In particular, Escudero “accept[ed] the relocation
aspects” of his career as a “normal condition of employ-
ment.”
In 2001, as part of a settlement of an action that Es-
cudero filed at the Equal Employment Opportunity Com-
mission, Escudero was assigned to work in Houston,
Texas as a Special Project Coordinator/Public Health
Official in the Texas Department of State Health Services
(TDSHS), a CDC employment position created as part of a
2000 agreement between the CDC and the State of Texas.
In 2007, TDSHS determined that Escudero’s position was
no longer needed, and the CDC subsequently offered
Escudero a position in Nashville, Tennessee.
Escudero declined the reassignment to Nashville and
elected to retire, effective October 31, 2007. Escudero
3 ESCUDERO v. MSPB
thereafter filed a complaint at the Equal Employment
Opportunity Commission, alleging, among other things,
that his retirement was involuntary. In October of 2009,
the agency issued a final decision finding neither dis-
crimination nor retaliation.
Escudero then appealed the agency’s final decision to
the Board, arguing that his retirement was involuntary.
After holding a hearing, the administrative judge as-
signed to Escudero’s appeal concluded that Escudero
failed to show that his retirement was involuntary. Thus,
the Board concluded that it lacked jurisdiction over Es-
cudero’s claims.
The deadline for Escudero to file a petition for review
by the full Board was April 28, 2010. That deadline
passed, and Escudero filed a petition for review on May 3,
2010. The Clerk of the Board advised Escudero that his
appeal appeared to be untimely filed and instructed
Escudero to file a motion showing that his appeal was
timely filed or that good cause existed for the late filing.
Escudero failed to respond.
The Board then issued a final order determining that
Escudero lacked good cause for filing a late petition. In
particular, the Board noted that Escudero failed to pre-
sent any evidence that would establish good cause.
Escudero timely appealed.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(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 Briggs v.
ESCUDERO v. MSPB 4
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reason-
able mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
Board regulations provide that a petition for review of
an initial decision must be filed within 35 days after
issuance of the initial decision or, if the petitioner shows
that he received the initial decision more than five days
after its issuance, within 30 days of receipt of the initial
decision. 5 C.F.R. § 1201.114(d). The Board can waive the
time limit if the petitioner shows good cause for the delay.
Id. § 1201.114(e). To establish good cause, the petitioner
must demonstrate that he exercised due diligence or
ordinary prudence under the circumstances. Phillips v.
U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982).
Whether a regulatory time limit should be excused for
good cause “is a matter committed to the Board’s discre-
tion 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).
In this case, Escudero failed to present any evidence
that his appeal was timely filed or that good cause existed
for the delay. In a supplemental brief filed in this court,
Escudero declares that he filed his petition on April 26,
2010, but there is no evidence to support this claim.
Indeed, the evidence that Escudero points to is an email
dated May 6, 2010 that contains no indication that Es-
cudero timely filed his petition for review. On these facts,
we cannot conclude that the Board abused its discretion
in concluding that Escudero’s petition was untimely.
Instead of focusing on the timeliness issues, the bulk
of Escudero’s appeal challenges the administrative judge’s
5 ESCUDERO v. MSPB
determination that the Board lacked jurisdiction over
Escudero’s involuntary retirement appeal. While that
issue is not presently before us, Ashworth v. Merit Sys.
Prot. Bd., 190 F.App’x 952, 952 (Fed. Cir. 2006), we note
that the administrative record contains substantial evi-
dence to support the administrative judge’s finding that
Escudero failed to prove that his retirement was involun-
tary.
AFFIRMED