Sesson v. Merit Systems Protection Board ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3306
PAMELA SESSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Pamela Sesson, of Fort Washington, Maryland, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, 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: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3306
PAMELA SESSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DC0752070205-I-1.
___________________________
DECIDED: January 14, 2008
___________________________
Before BRYSON, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Petitioner Pamela Sesson was removed from her position as an Information
Technology Specialist for the Department of the Army. She sought to appeal her
removal to the Merit Systems Protection Board, but the Board dismissed her appeal as
untimely filed. She now appeals the Board’s determination that there was no good
cause for the filing delay. We affirm.
I
The Board’s regulations require appeals to be filed “no later than 30 days after
the effective date, if any, of the action being appealed, or 30 days after the date of
receipt of the agency’s decision, whichever is later.” 5 C.F.R. § 1201.22(b). When an
appeal is filed late, the appeal will be dismissed unless the appellant provides a good
reason for the delay. 5 C.F.R. § 1201.22(c) (“If a party does not submit an appeal within
the time set by statute, regulation, or order of a judge, it will be dismissed as untimely
filed unless a good reason for the delay is shown.”); see also 5 C.F.R. § 1201.12 (“A
judge may, for good cause shown, waive a Board regulation”). The Board has identified
six factors that it considers in determining whether an appellant has shown good cause
that would excuse a filing delay:
the length of the delay; whether appellant was notified of the time limit or
was otherwise aware of it; the existence of circumstances beyond the
control 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 showing 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.
Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo v.
Dep’t of the Air Force, 4 M.S.P.R. 180, 184 (1980)). The Board has also specified how
an appellant can show good cause when the appellant claims that illness caused the
untimely filing. In such case, the appellant must: “(1) identify the time period during
which he suffered from the illness; (2) submit medical evidence showing that he
suffered from the alleged illness during that time period; and (3) explain how the illness
prevented him from timely filing his appeal or a request for an extension of time.” Lacy
v. Dep’t of the Navy, 78 M.S.P.R. 434, 437 (1998).
2007-3306 2
II
Ms. Sesson received notice of her removal in a decision letter on October 19,
2006, and her removal became effective on October 24, 2006. Seeking review of her
removal, she filed an appeal with the Merit Systems Protection Board on December 16,
2006. She also sought review of a “negative suitability determination” and a “failure to
restore,” and she requested that the Board order the Occupational Safety & Health
Administration (“OSHA”) to conduct air quality testing at her former workplace. The
appeal also included allegations of reprisal for whistleblowing.
Because the deadline for filing the appeal was November 24, 2006, the
administrative judge issued an order directing Ms. Sesson to show cause for the delay
in filing. The order referenced the factors that the Board considers in determining
whether there was good cause for a filing delay. The administrative judge also issued
an order to show cause on January 8, 2007, notifying Ms. Sesson of the Board’s
jurisdictional requirements and ordering her to submit evidence that would establish
jurisdiction over her appeal from the negative suitability determination, the failure to
restore, and her allegations of reprisal for whistleblowing. The order also informed her
that the Board lacks jurisdiction to order OSHA to conduct air quality testing. On
January 24, 2007, the administrative judge issued a third order to show cause,
explaining the burden for showing good cause for a delay in filing due to illness.
In response, Ms. Sesson submitted medical records that showed that she had a
history of medical problems, along with evidence that she had been in a car accident in
January 2006. Ms. Sesson also alleged that she misunderstood the agency’s decision
letter. The letter stated that an appeal to the Board must be filed within 30 days of the
2007-3306 3
effective date of the removal, but it added that the filing deadline would be extended an
additional 30 days if Ms. Sesson and the “agency mutually agree[d] in writing to attempt
to resolve their dispute through an alternative dispute resolution process prior to the
timely filing of an appeal.” Ms. Sesson argued that she believed the 30-day extension
applied to her appeal because (1) she requested family support counseling from the
agency, (2) the deciding official for her removal agreed to permit her to make an oral
reply to the proposal for her removal, and (3) she sent emails to the agency requesting
alternative solutions for her return to work before her removal became final.
Reviewing Ms. Sesson’s submissions, the administrative judge determined that
the factors articulated in Alonzo weighed against a finding of good cause because (1)
Ms. Sesson had not alleged the existence of any unusual circumstances during the
filing period, (2) the 22-day delay was not minimal, and (3) Ms. Sesson did not provide
an explanation that would have established good cause for even a minimal delay.
Although the administrative judge determined that Ms. Sesson’s medical evidence
showed that she suffered from a number of health problems (bronchitis, tooth decay,
chronic sinusitis, respiratory problems, and depression), he found that Ms. Sesson had
not provided an explanation or any evidence showing that those health problems
affected her ability to file her appeal before the deadline. The administrative judge
therefore concluded that Ms. Sesson had failed to satisfy the Board’s requirements for
excusing a filing delay on account of illness.
In reaching that conclusion, the administrative judge did not rely solely on the
absence of any connection between Ms. Sesson’s medical evidence and the filing
delay. The administrative judge also found that Ms. Sesson could have filed an appeal
2007-3306 4
before the deadline because she had filed a seven-page safety notice with OSHA two
days after the filing deadline for her appeal to the Board. The administrative judge
explained that Ms. Sesson’s OSHA filing specifically challenged her removal and
“present[ed] no indicia that the appellant’s ability to file a timely Board appeal was
impaired.”
The administrative judge next addressed Ms. Sesson’s argument that she
misunderstood the agency’s decision letter. Because none of the events relied on by
Ms. Sesson involved an agreement in writing to resolve the dispute through an
alternative dispute resolution process, the administrative judge found that the 30-day
filing extension did not apply to Ms. Sesson’s appeal. Additionally, the administrative
judge found that Ms. Sesson’s assertion that she misunderstood the letter lacked
credibility and therefore did not weigh in favor of a finding of good cause.
Finally, the administrative judge ruled that the Board lacked jurisdiction over her
restoration appeal and her allegations of reprisal for whistleblowing. In addition, the
administrative judge noted that Ms. Sesson had withdrawn her “negative suitability”
appeal.
Ms. Sesson filed a petition for review with the full Board. Her petition included
documents from OSHA to support her claim that the air quality at her workplace was
inadequate. Finding that Ms. Sesson had not submitted significant new evidence and
finding no error in the administrative judge’s findings, the Board denied review. Ms.
Sesson now seeks review by this court.
2007-3306 5
III
Ms. Sesson raises two issues on appeal. She argues that the Board failed to
properly consider her request for family support counseling as affecting the timeliness of
her appeal. In addition, she argues that the Board failed to recognize as new evidence
the reports from OSHA regarding the air quality in her workplace.
First, the Board committed no error in finding that Ms. Sesson’s request for family
support counseling did not extend her filing deadline for an additional 30 days. The
agency’s decision letter provided a correct statement of the Board’s regulation
permitting a 30-day filing extension when “an appellant and an agency mutually agree in
writing to attempt to resolve their dispute through an alternative dispute resolution
process.” 5 C.F.R. § 1201.22(b). Because Ms. Sesson’s request for family support
counseling does not constitute an agreement in writing to pursue alternative dispute
resolution, the Board correctly determined that the 30-day filing extension did not apply
to Ms. Sesson’s appeal. If the administrative judge had found that Ms. Sesson
genuinely believed that she had more time to file her appeal, then a finding of good
cause might have been appropriate. The administrative judge, however, found Ms.
Sesson’s statement to lack credibility and concluded that it was “highly unlikely that the
appellant genuinely held this alleged misinterpretation at the time the agency issued its
removal decision.” Moreover, the administrative judge concluded that the “alleged
reasons for believing she had a 60-day time limit for filing her appeal are unreasonable.”
On appeal, Ms. Sesson has not provided any reasons that would warrant a reversal of
the Board’s credibility determination. See Hambsch v. Dep’t of Treasury, 796 F.2d 430,
436 (Fed. Cir. 1986) (credibility determinations are “virtually unreviewable”). Nor has
2007-3306 6
she demonstrated that the administrative judge was wrong in finding that it would have
been unreasonable for her to have believed she had 60 days to file her appeal.
The Board also did not fail to consider the air quality reports from OSHA, which
Ms. Sesson attached to her petition for review. Under the Board’s regulations, a petition
for review may be granted when “[n]ew and material evidence is available that, despite
due diligence, was not available when the record closed.” 5 C.F.R. § 1201.115(d)(1).
The OSHA documents, however, are not relevant to the administrative judge’s
conclusion that Ms. Sesson failed to make a showing of good cause for her filing delay.
Ms. Sesson may have been trying to add support to her claim of whistleblower reprisal.
The administrative judge, however, noted that Ms. Sesson had alleged reprisal as part
of her removal appeal but determined that the Board lacked jurisdiction over that appeal
because of untimeliness. The administrative judge also determined that the Board did
not have jurisdiction over Ms. Sesson’s reprisal claim as an individual right of action
(IRA) appeal because she had not offered evidence that she had exhausted her
administrative remedies by seeking corrective action from the Office of Special Counsel.
Because Ms. Sesson made no such showing, the administrative judge correctly
concluded that the Board lacked jurisdiction over her IRA appeal. See Yunus v. Dep’t of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). The air quality reports are not
relevant to that conclusion. We therefore hold that the Board did not err in finding that
the OSHA reports did not constitute new and material evidence.
The Board also committed no error in finding that it lacked jurisdiction over Ms.
Sesson’s restoration appeal. The second order to show cause explained to Ms. Sesson
the requirements for establishing the Board’s jurisdiction over a restoration appeal.
2007-3306 7
Among other jurisdictional requirements, an appellant seeking restoration based on a
complete recovery from a compensable injury must make non-frivolous allegations that
“she suffered a compensable injury and that her separation was substantially related to
the compensable injury.” Norwood v. U.S. Postal Serv., 100 M.S.P.R. 494, 496 (2005).
Likewise, an appellant seeking restoration based on a partial recovery from a
compensable injury must show that “[s]he was absent from her position due to a
compensable injury.” Chen v. U.S. Postal Serv., 97 M.S.P.R. 527, 533 (2004). The
Board defines “compensable injury” as a condition “that is accepted by the Office of
Workers’ Compensation Programs (OWCP) as job-related, for which medical monetary
benefits are payable from the Employees’ Compensation Fund.” Id. The Board has
stated that an appellant seeking restoration based on recovery from a compensable
injury must allege that “the appellant had received compensation for an injury from
OWCP.” King v. Dep’t of the Navy, 90 M.S.P.R. 341, 346 (2001). Nothing in the record
indicates that Ms. Sesson received compensation from OWCP during her absences
from work. The Board therefore did not commit any error in concluding that it lacked
jurisdiction over Ms. Sesson’s restoration appeal on the ground that she did not allege
that her absences were due to a compensable injury.
Finally, we find no abuse of discretion in the Board’s determination that Ms.
Sesson’s medical evidence did not show good cause for her filing delay. Although Ms.
Sesson’s medical evidence shows a history of health problems, the Board requires an
appellant who asserts a medical condition as the explanation for an untimely filing to
“explain how the illness prevented him from timely filing his appeal or a request for an
extension of time.” Lacy, 78 M.S.P.R. at 437. Ms. Sesson’s medical evidence did not
2007-3306 8
establish that connection. Additionally, although the air quality reports from OSHA
might explain some of her medical problems, they were not new evidence that would
have filled the gap left by Ms. Sesson’s earlier submissions in light of her failure to show
how her medical problems prevented her from complying with the Board’s filing
requirements. We therefore affirm the Board’s ruling.
2007-3306 9