Neese v. MSPB

Case: 21-2321 Document: 49 Page: 1 Filed: 05/04/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ASHLEY B. NEESE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2321
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-21-0420-I-1.
______________________
Decided: May 4, 2022
______________________
ROSANNA LOPEZ, Lopez & Wu, PLLC, Reston, VA, for
petitioner.
ELIZABETH WARD FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before PROST, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Case: 21-2321 Document: 49 Page: 2 Filed: 05/04/2022
2 NEESE v. MSPB
Ashley Neese, an attorney represented by counsel
throughout the present matter, filed an appeal at the Merit
Systems Protection Board under 5 U.S.C. §§ 7512, 7701
challenging her removal from, and seeking reinstatement
to, her position as a federal employee. Because the appeal
appeared to have been filed after the applicable Board
deadline for appealing agency actions, see 5 C.F.R.
§ 1201.22, the administrative judge assigned to the matter
issued an order to show cause, by a specified date, why the
appeal should not be dismissed because of untimeliness.
SAppx. 45. Nine days after the response deadline had
passed, with no response from Ms. Neese, the administra-
tive judge issued an initial decision dismissing the removal
appeal as untimely. Neese v. Dep’t of Justice, No. DC-0752-
21-0420-I-1, 2021 WL 2414242 (M.S.P.B. June 8, 2021).
Later that day, Ms. Neese filed a document entitled
“Reopening an Appeal Dismissed Without Prejudice” in
which she responded to the show cause order, Appx. 189–
213, and briefly requested “that the Board consider her re-
sponse, as she believes good cause has been shown” for
missing the deadline for filing it, Appx. 190; Appx. 189.
She did not attach declarations showing such good cause;
in particular, she did not attach the September 2021 and
February 2022 declarations she has included in her appen-
dix in this court, which had not yet been written. Three
days after making her “Reopening” filing, Ms. Neese in-
formed the Board that she did not intend that document to
constitute a petition for review of the initial decision, and
the Board deleted it pursuant to her request. SAppx. 52.
Ms. Neese did not ultimately petition the Board for review
of the initial decision, which on July 13, 2021, became the
final decision of the Board under 5 U.S.C. § 7703(b)(1).
SAppx. 5.
Within the 60 days allowed by 5 U.S.C. § 7703(b)(1)(A),
Ms. Neese appealed to this court. This court has jurisdic-
tion under 28 U.S.C. § 1295(a)(9) to hear the appeal from
Case: 21-2321 Document: 49 Page: 3 Filed: 05/04/2022
NEESE v. MSPB 3
the Board’s final decision dismissing Ms. Neese’s removal
appeal.
The sole argument Ms. Neese presents in her opening
brief is that good cause existed for her failure to timely re-
spond to the show cause order. But that is not a challenge
to a ruling made by the Board, because Ms. Neese did not
ask the Board (either the full Board or the administrative
judge) to decide that she had good cause for missing the
deadline for responding to the show-cause order, and no
such decision was made by the Board (either the full Board
or the administrative judge). With respect to this good-
cause argument, there was no “agency action, finding[], or
conclusion[].” 5 U.S.C. § 7703(c) (providing that, on appeal,
we are to “hold unlawful” or “set aside” “any action, find-
ings, or conclusions” that are arbitrary, capricious, an
abuse of discretion, or contrary to law; were obtained in vi-
olation of procedural requirements; or are unsupported by
substantial evidence). Reflecting the statutory scope of re-
view, we routinely refuse requests to address issues not
presented to or decided by the Board. See, e.g., Hansen v.
Dep’t of Homeland Security, 911 F.3d 1362, 1369–70 (Fed.
Cir. 2018); Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668
(Fed. Cir. 1998).
Moreover, even if we assume that we have the author-
ity to consider the good-cause issue where no Board ruling
on the issue was sought or obtained, we do not see a suffi-
cient basis for this court to do so. Ms. Neese could have
petitioned the full Board to remand the case back to the
administrative judge to consider the belated response—a
path that Ms. Neese initiated but then abandoned. SAppx.
52; see, e.g., 5 C.F.R. § 1201.117(a)(4). The absence of a
Board quorum at the time does not justify this court’s un-
dertaking itself to decide in the first instance a good-cause
question that typically involves Board discretion and def-
erential review. See generally Mendoza v. Merit Sys. Prot.
Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc);
Bacashihua v. Merit Sys. Prot. Bd., 811 F.2d 1498, 1500
Case: 21-2321 Document: 49 Page: 4 Filed: 05/04/2022
4 NEESE v. MSPB
(Fed. Cir. 1987); Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434,
437 (Fed. Cir. 1986). And as the Board seems to
acknowledge in its brief in this court, Appellee Br. 12 n.2,
Ms. Neese may yet seek reopening of the final decision un-
der 5 C.F.R. § 1201.118, and a denial of the reopening or a
new final decision after reopening would be subject to judi-
cial review. That path, if Ms. Neese chooses to follow it, is
the appropriate one here, even though the standards for
relief on reopening may be tougher than the standards on
direct review by the Board.
As to the merits of the Board’s dismissal of Ms. Neese’s
underlying appeal for untimeliness, we agree with the
Board that Ms. Neese forfeited a challenge to the dismissal
in the present appeal by not raising it in her opening brief.
It is well-established law that arguments not raised in the
opening brief are generally forfeited. SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006).
Ms. Neese’s opening brief discusses only whether there was
good cause to permit her to file a late response to the show
cause order. See Appellant Br. 1, 26–27. And though she
stated that she was ultimately seeking reinstatement, id.
at 25, she made no legal argument for why the administra-
tive judge’s dismissal of her appeal as untimely was incor-
rect, see SmithKline Beecham, 439 F.3d at 1320 (“[M]ere
statements of disagreement . . . do not amount to a devel-
oped argument.”).
We see no sufficient basis in this case for exercising dis-
cretion to reach the issue (addressed by Ms. Neese in her
reply brief here). Ms. Neese could have included the issue
in her opening brief. And the Board should not have been
forced in its response brief to guess at what arguments she
Case: 21-2321 Document: 49 Page: 5 Filed: 05/04/2022
NEESE v. MSPB 5
might raise in reply. We therefore affirm the Board’s deci-
sion dismissing her appeal for untimeliness. 1
The parties shall bear their own costs.
AFFIRMED
1 Ms. Neese’s motion to permit a supplemental ap-
pendix and to supplement the record is granted.