Pelcher-Herring v. Merit System Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TANYA F. PELCHER-HERRING,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3060
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0152-B-1.
______________________
Decided: May 14, 2015
______________________
TANYA F. PELCHER-HERRING, Greensboro, NC, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before NEWMAN, REYNA, and TARANTO, Circuit Judg-
es.
2 PELCHER-HERRING v. MSPB
PER CURIAM.
Tanya Pelcher-Herring appeals the decision of the
Merit Systems Protection Board (“Board”) to dismiss her
petition for review as untimely. For the following rea-
sons, we affirm.
BACKGROUND
Ms. Pelcher-Herring served as a Training and Devel-
opment Specialist with the Federal Mediation and Concil-
iation Service (“Agency”). According to the Agency, Ms.
Pelcher-Herring did not report to work for nine months
between January 25 and October 26, 2012. She explained
to supervisors that her absence was due to physical and
psychological impairment that prevented her from travel-
ing, speaking in a classroom-level training voice, or deal-
ing with stress related to work. The Agency placed Ms.
Pelcher-Herring on absent without leave status and
eventually removed her on October 26, 2012 for medical
inability to perform.
Ms. Pelcher-Herring appealed her removal to the
Board. Her allegations included discrimination, failure to
accommodate a disability, constructive suspension, harm-
ful error, privacy violations, and retaliation for her pro-
tected whistleblowing activities. On March 26, 2013, an
administrative judge (“AJ”) found that Ms. Pelcher-
Herring’s removal was justified based on her medical
inability to perform her job, and that she had not estab-
lished any affirmative defense.
The Board affirmed the AJ’s initial decision, but found
that the AJ had failed to address Ms. Pelcher-Herring’s
allegations of prohibited personnel practices related to her
whistleblowing activities under 5 U.S.C. § 2302(B)(9)(b)
and (B)(12). The Board remanded for findings on that
issue.
Following a supplemental hearing, an AJ found that
Ms. Pelcher-Herring had not proven her allegations of
PELCHER-HERRING v. MSPB 3
prohibited personnel practices. The AJ credited the
testimony of Ms. Pelcher-Herring’s managers that at the
time they were considering her removal, they were una-
ware of her alleged whistleblowing activities. The AJ
issued his decision in favor of the agency on July 2, 2014.
The AJ’s decision included a notice stating that the deci-
sion would become final on the later of August 6, 2014 or
thirty days after Ms. Pelcher-Herring actually received
the decision. Ms. Pelcher-Herring was a registered e-filer
on the Board’s electronic filing system at that time.
On August 7, Ms. Pelcher-Herring used the Board’s e-
filing system to file a petition for review of the July 2
order. She indicated in her petition that her filing was
timely because she did not receive the July 2 order until
July 8. In a motion to accept the filing as timely, Ms.
Pelcher-Herring further explained that she had good
cause for the late filing because on July 15, she under-
went a surgical procedure and was taking oxycodone, a
pain medication with physical and mental side-effects.
On November 12, 2014, the Board dismissed Ms.
Pelcher-Herring’s petition as untimely, and she appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard and Scope of Review
Our review of a Board decision is circumscribed by
statute. We can set the decision aside only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c) (2012). The Board has broad discretion
to control its own docket, and we will not reweigh the
facts of the case or substitute our judgment for that of the
Board. See Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386,
388 (Fed. Cir. 1994).
4 PELCHER-HERRING v. MSPB
The sole issue on appeal is whether the Board erred
by dismissing Ms. Pelcher-Herring’s August 7 petition as
untimely. Although Ms. Pelcher-Herring addresses the
timelines of her petition, she argues that her appeal
should be considered on the merits. Brief of Appellant at
6. She misunderstands the scope of our review. This
appeal is taken from the final Board decision of November
12, 2014, which dismissed Ms. Pelcher-Herring’s petition
as untimely without reaching the merits. Because we
review only the decision below, the merits are not proper-
ly before us, and we will consider only the issue of timeli-
ness. See Alexander v. Merit Sys. Prot. Bd., 152 F.3d 948
(Fed. Cir. 1998).
B. Timeliness
We agree that Ms. Pelcher-Herring’s petition was late
by one day. Under the Board’s regulations, a petition to
review must be filed by the later of 35 days after the
decision issues, or 30 days after the petitioner receives a
decision. 5 C.F.R. § 1201.114(e); see also 5 U.S.C. §
7701(e)(1)(A). Ms. Pelcher-Herring did not file within the
limits set forth by either the 35-day or 30-day calculation.
Ms. Pelcher-Herring does not challenge the Board’s
timeliness determination under the 35-day calculation.
There is no dispute that the AJ’s decision issued on July 2
and that Ms. Pelcher-Herring filed her appeal on August
7, more than thirty five days later. Ms. Pelcher-Herring’s
petition is therefore not timely under the 35-day calcula-
tion.
Ms. Pelcher-Herring nevertheless claims her filing
was timely under the 30-day calculation because she did
not receive notice of the decision until July 8, and she
filed within thirty days thereafter.
The Board found that Ms. Pelcher-Herring failed to
demonstrate that she received the decision only on July 8.
In addition, Board regulations dictate that “documents
PELCHER-HERRING v. MSPB 5
served electronically on registered e-filers are deemed
received on the date of electronic submission.” 5 C.F.R.
§ 1201.14(m)(2). Because Ms. Pelcher-Herring was a
registered e-filer on July 2, the Board presumed that she
received the decision when it issued on July 2. The Board
also found that Ms. Pelcher-Herring offered no basis to
substantiate her claims of receiving the decision six days
after it was electronically issued. Consequently, the
Board saw no basis for deviating from its presumption of
receipt under § 1201.14(m)(2). We see no abuse of discre-
tion in the Board’s timing analysis.
C. Good Cause
When a petition is filed late, the Board may neverthe-
less accept it if the petitioner demonstrates good cause for
the delay. 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(g).
To determine whether the petitioner has demonstrated
good cause, the Board has stated it considers: (1) the
length of the delay, (2) whether the petitioner is pro se, (3)
the reasonableness of the excuse and the petitioner’s
showing of due diligence, and (4) whether the petitioner
presented evidence of circumstances beyond her control
that affected her ability to comply with the time limits.
See Palermo v. Department of the Navy, 120 M.S.P.R. 694
¶ 4 (2014). The petitioner carries the burden of showing
good cause by a preponderance of the evidence. See
Batdorf v. Merit Sys. Prot. Bd., 582 F. App’x 869, 871
(Fed. Cir. 2014).
Noting that Ms. Pelcher-Herring was proceeding pro
se and that her delay was minimal, the Board neverthe-
less found she had presented no reasonable excuse for the
late filing. Regarding her medical condition, the Board
found that Ms. Pelcher-Herring failed to explain how the
condition prevented her from timely filing her petition or
from requesting an extension of time. Regarding her
confusion about the filing deadline, the Board found that
Ms. Pelcher-Herring’s misreading of the filing deadline
6 PELCHER-HERRING v. MSPB
did not establish good cause because she received proper
notice of the deadline. The Board explained that “a
party’s misinterpretation or misreading of the filing
deadline, without more, does not establish good cause for
an untimely filing where the initial decision informs the
parties of the proper filing deadline and provides notice of
the process for filing a petition for review.”
We find no fault with the Board’s determination that
Ms. Pelcher-Herring’s medical excuse did not demonstrate
good cause.
We also find that the Board did not abuse its discre-
tion by finding that petitioner’s misreading of the filing
deadline did not demonstrate good cause. It is the peti-
tioner’s burden to show good cause by preponderant
evidence. As the Board correctly noted, Ms. Pelcher-
Herring has shown nothing to substantiate her claim of
having received the decision no earlier than July 8.
Moreover, as a registered e-filer, Ms. Pelcher-Herring
consented to accept all documents issued by the Board in
electronic form, see 5 C.F.R. § 1201.14(e)(1), and was
under obligation to monitor the e-filing system for case
activity, see id. § 1201.14(j)(3). The Board was therefore
within its discretion to determine that Ms. Pelcher-
Herring did not carry her burden to prove the alleged late
receipt or the existence of any confusion derived there-
from. Accordingly, we cannot find that the Board’s ac-
tions were arbitrary, an abuse of discretion, or otherwise
erroneous under the law.
CONCLUSION
For all of the foregoing reasons, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.