Rocha v. Merit Systems Protection Board , 688 F.3d 1307 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
FRANK G. ROCHA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF STATE,
Intervenor.
__________________________
2012-3087
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0752100549-I-1.
__________________________
Decided: July 24, 2012
__________________________
FRANK G. ROCHA, of Peabody, Massachusetts, 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.
ROCHA v. MSPB 2
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
her on the brief were STUART F. Delery, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
CLAUDIA BURKE, Assistant Director.
__________________________
Before RADER, Chief Judge, MAYER and SCHALL, Circuit
Judges.
MAYER, Circuit Judge.
Frank G. Rocha appeals a final order of the Merit Sys-
tems Protection Board (“board”) dismissing his petition
for review as untimely filed. See Rocha v. Dep’t of State,
No. PH-0752-10-0549-I-1, 2011 MSPB LEXIS 7665 (Dec.
22, 2011) (“Final Order”). We affirm.
I.
In 2008, Rocha was appointed to an excepted service
position as a passport specialist at the United States
Department of State (“State Department”). By letter
dated July 9, 2010, the State Department informed Rocha
that his appointment would soon expire and that the
agency would not convert his excepted service appoint-
ment into a career or career-conditional position. Rocha’s
appointment expired on July 16, 2010.
Rocha then appealed to the board. See Rocha v. Dep’t
of State, No. PH-0752-10-0549-I-1, 2010 MSPB LEXIS
6543 (Nov. 10, 2010). In an initial decision, an adminis-
trative judge concluded that the board had no jurisdiction
over Rocha’s appeal because he was serving under an
excepted service appointment in the Federal Career
Intern Program (“FCIP”) at the time of his termination.
3 ROCHA v. MSPB
Id. at *2-3. The administrative judge explained that
“[t]ime spent . . . in [an] appointment under [the] FCIP
constitutes a probationary or trial period,” and that FCIP
employees do not obtain the right to appeal to the board
until their appointments are converted to competitive
service positions. Id. at *3. Because Rocha’s position had
not been converted to the competitive service at the
conclusion of his FCIP appointment, the board lacked
jurisdiction to consider his appeal. Id.
Rocha was informed by the administrative judge that
“[t]his initial decision will become final on December 15,
2010, unless a petition for review is filed by that date or
the Board reopens the case on its own motion.” Id. at *3-4
(emphasis in original). The initial decision was served
upon Rocha by email because he had consented to elec-
tronic filing.
On June 3, 2011, Rocha filed a petition with the
board, seeking review of the administrative judge’s initial
decision. The board informed Rocha that his petition was
untimely because it was filed more than five months after
the deadline for seeking review of the initial decision.
The board further informed Rocha that it would consider
the merits of his petition only if he established good cause
for his untimely filing. In response, Rocha asserted that
he “never received any notification, electronically or
otherwise to the fact that [his] case had been dismissed.”
On December 22, 2011, the board issued a final order
dismissing Rocha’s petition for review as untimely filed.
The board determined that Rocha’s assertion that he did
not receive a copy of the administrative judge’s initial
decision “lack[ed] merit,” because Rocha had registered as
an e-filer and had “thereby consented to accept all plead-
ings filed by other registered e-filers, and all documents
issued by the Board, in electronic form.” Final Order,
ROCHA v. MSPB 4
2011 MSPB LEXIS 7665, at *5. The board noted, more-
over, that its regulations require an e-filer “to monitor his
case activity at the Repository at e-Appeal Online to
ensure that he receive[s] all case related documents.” Id.
Because Rocha had presented “no evidence of the exis-
tence of circumstances beyond his control that affected his
ability to comply with the time limits” for filing a petition
for review, the board dismissed Rocha’s appeal as un-
timely filed. Id. at *6-7. Rocha then appealed to this
court.
II.
This court’s authority to review decisions of the board
is circumscribed by statute. See 5 U.S.C. § 7703(c).
Specifically, we must affirm a board decision unless we
find it to be: (1) arbitrary, capricious, an abuse of discre-
tion, 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. Id. The board “has broad discretion to control
its own docket.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d
386, 388 (Fed. Cir. 1994). Accordingly, “whether the
regulatory time limit for an appeal should be waived
based upon a showing of good cause is a matter commit-
ted to the Board’s discretion and this court will not substi-
tute its own judgment for that of the Board.” Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc); see also Zamot v. Merit Sys. Prot. Bd., 332 F.3d
1374, 1377 (Fed. Cir. 2003).
The board will waive the time limit for filing a peti-
tion for review if a petitioner establishes “good cause” for
his delay in filing. Zamot, 332 F.3d at 1377. Relevant
factors in determining whether a petitioner has demon-
strated good cause for a late filing include the length of
the delay, whether circumstances beyond a petitioner’s
5 ROCHA v. MSPB
control affected his ability to comply with the filing dead-
line, whether he was notified of the time limit for filing a
petition for review, and whether he exercised due dili-
gence in attempting to meet the filing deadline. See id.;
Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.
Cir. 1994).
We conclude that the board did not abuse its discre-
tion in refusing to allow Rocha to file his petition for
review more than five months after the filing deadline.
Although Rocha claims that he did not receive the admin-
istrative judge’s initial decision, the record shows that the
decision was sent to the email address he provided to the
board when he filed his appeal. As a registered e-filer,
Rocha consented to accept all documents issued by the
board in electronic form. See 5 C.F.R. § 1201.14(e)(1)
(“Registration as an e-filer constitutes consent to accept
electronic service of pleadings filed by other registered e-
filers and documents issued by the [board].”). Indeed,
Rocha was required by regulation to monitor his case
online in order to insure that he received all case-related
documents. See id. § 1201.14(j)(3) (“E-filers are responsi-
ble for monitoring case activity at the Repository at e-
Appeal Online to ensure that they have received all case-
related documents.”).
Even assuming arguendo that Rocha did not in fact
review the email copy of the initial decision on the date
that it was issued, he has not submitted any evidence to
show how he received that decision or how circumstances
beyond his control prevented him from filing his petition
for review in a timely manner. “Delay is excusable where,
under the circumstances, a petitioner exercises diligence
or ordinary prudence.” Mendoza, 966 F.2d at 653. Be-
cause Rocha failed to carry his burden to establish that he
exercised due diligence or ordinary prudence in monitor-
ing his case, the board acted well within its discretion in
ROCHA v. MSPB 6
refusing to waive the time limit for filing his petition for
review. See Phillips v. U.S. States Postal Serv., 695 F.2d
1389, 1391 (Fed. Cir. 1982) (affirming the board’s refusal
to waive the filing deadline where “no adequate reason
was presented to explain” the delay in filing).
As the board correctly determined, moreover, it would
have had no jurisdiction over Rocha’s appeal even if his
petition for review had been timely filed. “The jurisdic-
tion of the MSPB is not plenary, but is limited to those
areas specifically granted by statute or regulation.”
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327
(Fed. Cir. 2006) (en banc) (citations and internal quota-
tion marks omitted); Forest v. Merit Sys. Prot. Bd., 47
F.3d 409, 410 (Fed. Cir. 1995). Not every personnel action
is considered an “adverse action” that can be appealed to
the board. See 5 U.S.C. § 7512. Under the FCIP program,
interns were appointed for a term of two years, but their
appointments could be extended for up to one year. See 5
C.F.R. § 213.3202(o)(7). In 2008, Rocha was appointed to a
two-year term, which was extended for four months due to
the fact that he was placed on leave without pay status
during 2008 and 2009. When Rocha’s appointment ex-
pired in July 2010, the State Department had the option
of converting his position to the competitive service. Id.Rocha, however, had no right to further federal employ-
ment when his FCIP appointment ended. Accordingly,
the State Department’s decision not to convert his ap-
pointment to a competitive service position was not an
“adverse action” appealable to the board. 5 C.F.R.
§ 752.401(b)(11) (providing that appealable adverse
actions do not include the “[t]ermination of [an] appoint-
ment on the expiration date specified as a basic condition
of employment at the time the appointment was made”);
see also Scull v. Dep’t of Homeland Sec., 113 M.S.P.R. 287,
291 (2010) (emphasizing that “an FCIP intern’s termina-
7 ROCHA v. MSPB
tion upon the expiration of his appointment is generally
not an adverse action appealable to the Board because it
merely carries out the terms of the appointment”). Ac-
cordingly, we affirm the board’s decision dismissing
Rocha’s petition for review.
AFFIRMED