Philbert v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MORTIMER PHILBERT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3029
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0752130165-I-1.
______________________
Decided: February 7, 2014
______________________
MORTIMER PHILBERT of Woodbridge, Virginia, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before CHEN, CLEVENGER, and HUGHES, Circuit Judges.
2 PHILBERT v. MSPB
PER CURIAM.
Mortimer Philbert Sr. appeals from a final order of
the Merit Systems Protection Board. The Board dis-
missed his petition for review of its earlier initial decision,
finding the petition untimely and without good cause
shown for the filing delay. Because the Board did not
abuse its discretion and acted in accordance with the law,
we affirm.
I.
The Department of Health and Human Services em-
ployed Mr. Philbert as a Maintenance Mechanic until it
removed him in 2010. Mr. Philbert appealed his removal
to the Board and eventually settled with the Agency. As
part of the settlement, Mr. Philbert agreed to withdraw
his appeal and follow the terms of a Last Chance Agree-
ment (“LCA”). In return, the Agency agreed to hold Mr.
Philbert’s removal in abeyance provided he complied with
the terms of the LCA for two years. Mr. Philbert also
waived his right to a Board appeal from any future re-
moval based on his violation of the terms of the LCA.
In November 2012, the Agency determined that Mr.
Philbert had violated the terms of the LCA. The Agency
again removed Mr. Philbert from his position. Mr. Phil-
bert filed a timely appeal of this removal to the Board
through his representative. Because Mr. Philbert had
previously waived his right to appeal from an alleged
violation of the terms of the LCA, the administrative
judge sent an order to Mr. Philbert explaining what he
must show to establish the Board’s jurisdiction to hear his
appeal and ordered him to submit the requested infor-
mation. Mr. Philbert never responded to the order. On
January 7, 2013, the administrative judge issued an
initial decision dismissing Mr. Philbert’s appeal for lack of
jurisdiction. The administrative judge found that Mr.
Philbert had waived his right to appeal in the earlier
settlement agreement and that he had failed to provide
PHILBERT v. MSPB 3
information supporting his allegation that the Board
should nonetheless have jurisdiction over his appeal.
The Board’s initial decision stated that it would be-
come final on February 11, 2013, and provided the filing
deadlines for Mr. Philbert to petition for review. The
Board required Mr. Philbert to petition for review by
February 11, 2013, or, if he received the initial decision
more than five days after it issued, within 30 days of
receiving the decision. Mr. Philbert missed the February
deadline and, instead, filed a petition for review on July
13, 2013.
Mr. Philbert did not state a reason for his delay in fil-
ing in his petition of July 13, 2013. The Board issued an
acknowledgement letter on August 1, 2013, notifying Mr.
Philbert that he must submit a motion with evidence
showing good cause for his delay. The acknowledgement
letter included a form that he could fill out to submit this
motion. He did not submit the form and did not respond
to the Board’s letter. The Board found that Mr. Philbert
had not shown good cause for his delay in petitioning for
review of the initial decision. Accordingly, the Board
dismissed the petition as untimely.
II.
Our review of the Board’s decisions is limited by stat-
ute. Under 5 U.S.C. § 7703(c), we set aside any action,
finding, or conclusion that is: (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
the law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence. Mendoza v. Merit Sys. Prot.
Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).
“[W]hether the regulatory time limit for an appeal should
be waived based upon a showing of good cause is a matter
committed to the Board’s discretion and this court will not
substitute its own judgment for that of the Board.” Id.
4 PHILBERT v. MSPB
Mr. Philbert’s petition for review to the Board was un-
timely. In the letter acknowledging receipt of his petition,
the Board ordered Mr. Philbert to establish good cause for
the late filing and included directions and a form that he
could use to provide the reasons his delay should be
excused. Mr. Philbert did not respond to that letter and,
therefore, did not provide any reason to the Board to
excuse his untimely filing.
Now, for the first time on appeal, Mr. Philbert at-
tempts to explain his initial delay in filing his petition for
review. He states that he was evicted from his place of
residence in December 2012, moved into a shelter from
January 5, 2013, through May 3, 2013, and was unable to
receive correspondence during this time. He also claims
that his union representative did not properly represent
him. Had Mr. Philbert provided these reasons to the
Board in response to its August 1 order, the Board could
have considered them in determining whether to excuse
his untimely filing.
Mr. Philbert bears the burden of demonstrating ex-
cusable delay. Mendoza, 966 F.2d at 653. He has not
carried this burden. He did not explain his delay to the
Board, nor has he provided this court any reason for his
failure to provide any such explanation to the Board.
While we are sympathetic to Mr. Philbert’s circumstances,
we cannot consider new evidence that the Board never
received. Mueller v. U.S. Postal Serv., 76 F.3d 1198,
1201–02 (Fed. Cir. 1996). The Board, therefore, did not
abuse its discretion in finding that Mr. Philbert failed to
show good cause for the untimely filing of his petition for
review.
III.
For these reasons, we affirm the Board’s dismissal of
Mr. Philbert’s petition for review because his petition was
untimely.
PHILBERT v. MSPB 5
AFFIRMED
COSTS
No costs.