Ramey v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CARLTON A. RAMEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3183
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. SF0752100735-I-1.
____________________________
Decided: April 5, 2012
____________________________
CARLTON A. RAMEY, of Gardena, California, 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.
__________________________
RAMEY v. MSPB 2
Before LOURIE, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Carlton A. Ramey (“Ramey”) appeals from the Final
Order of the Merit Systems Protection Board (the
“Board”) dismissing Ramey’s petition for review as un-
timely filed. See Ramey v. U.S. Postal Serv., No. SF-0752-
10-0735-I-1, slip op. (M.S.P.B. May 13, 2011) (“Final
Order”). We affirm.
BACKGROUND
In a letter dated May 26, 2010, the United States
Postal Service (the “agency”) notified Ramey that on the
ground of unacceptable conduct he would be removed
from his position as a Mail Handler, effective June 4,
2010. Ramey appealed from the agency’s decision, but as
his appeal was pending he agreed to settle with the
agency. On September 14, 2010, in view of the parties’
settlement, the administrative judge issued an initial
decision dismissing the appeal with prejudice. See Ramey
v. U.S. Postal Serv., No. SF0752100735-I-1, slip op.
(M.S.P.B. Sept. 14, 2011) (“Initial Decision”). In that
decision, the administrative judge advised Ramey that he
could petition the Board for review of the decision by the
deadline of October 19, 2010:
NOTICE TO APPELLANT
This initial decision will become final on Oc-
tober 19, 2010, unless a petition for review is
filed by that date or the Board reopens the case on
its own motion. This is an important date because
it is usually the last day on which you can file a
petition for review with the Board.
3 RAMEY v. MSPB
Id. at 2.
On January 24, 2011, more than three months after
the deadline, Ramey filed a petition for review of the
Initial Decision on the basis that “management entered
into the agreement under false pretences [sic].” Resp’t
App. 38. In a letter dated January 26, 2011, the Board
stated that Ramey’s petition was untimely because it was
not filed by October 19, 2010. The Board informed Ramey
that his petition would be accepted as timely only if he
provided either a statement signed under penalty of
perjury, or an affidavit, showing that his petition was
timely filed or that good cause existed for the delay. In
response, in a letter dated February 9, 2011, Ramey
asked the Board for an extension of time to file previously
unavailable evidence. According to Ramey, this evidence
consisted of an audio transcript from a hearing before the
California Unemployment Insurance Appeals Board
(“CUIAB”) that “will prove my case against the U.S.
Postal Service.” Id. at 35. Ramey explained that he
“receive[d] the audio . . . on or about 1 or 3 Jan. 2011,”
and that he was waiting for a court reporter to prepare a
transcript. Id. Ramey also enclosed with his letter a copy
of a decision from the CUIAB mailed to Ramey on Sep-
tember 13, 2010. The CUIAB decision reversed an earlier
ruling of the Economic Development Department and
found that Ramey was not disqualified from receiving
unemployment benefits because he was discharged from
the agency for reasons other than misconduct. Ramey
stated in his letter that he did not ask for an extension of
time before the filing deadline because he was working on
his case and trying to save his home from foreclosure and
was not aware that he had missed the deadline.
In its Final Order dated May 13, 2011, the Board
dismissed Ramey’s petition for review as untimely filed
RAMEY v. MSPB 4
without good cause shown for the delay. The Board
determined that Ramey failed to show due diligence by
waiting until January 25, 2011, to provide the Board with
a copy of the CUIAB decision. The Board also reasoned
that the merits of the underlying removal are not relevant
to the issue of the validity of the settlement agreement, so
the audio transcript from the CUIAB hearing that Ramey
sought to submit as new evidence was not likely to change
the result of the Initial Decision. The Board further
found that Ramey’s other proffered reasons of general
personal difficulties did not constitute good cause for his
untimely filing.
Ramey appealed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our review of final decisions of the Board is circum-
scribed by statute. We may reverse a decision of the
Board only if it is: “(1) arbitrary, capricious, an abuse of
discretion, 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[.]” 5 U.S.C. § 7703(c). We review
facts found by the Board in a determination of untimeli-
ness for substantial evidence. Espenschied v. Merit Sys.
Prot. Bd., 804 F.2d 1233, 1238 (Fed. Cir. 1986). “We have
repeatedly stated that the waiver of a regulatory time
limit based on a showing of good cause is a matter com-
mitted to the Board’s discretion and that this court will
not substitute its own judgment for that of the Board.”
Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed.
Cir. 2003) (internal quotation marks omitted). In deter-
mining whether good cause exists for an untimely filing,
the Board may consider factors including “the length of
5 RAMEY v. MSPB
the delay, whether the appellant was notified of the time
limit, the existence of circumstances beyond the appel-
lant’s control that affected his ability to comply with the
deadline, the appellant’s negligence, if any, and any
unavoidable casualty or misfortune that may have pre-
vented timely filing.” Id.Ramey asserts that he did not act with bad faith or
with ill intent. He argues that, because he was trying to
save his house from foreclosure, the filing deadline should
have been extended for good cause. He also contends that
the new evidence concerning the CUIAB decision (which
he refers to as the “EDD decision”) is essential to making
him whole.
The government responds that the Board properly
dismissed Ramey’s petition for review as untimely filed
without a showing of good cause for delay. The govern-
ment asserts that the administrative judge provided
Ramey with a clear instruction that any petition for
review must be filed by October 19, 2010, and that Ramey
failed to prove that he exercised due diligence or ordinary
prudence. According to the government, substantial
evidence supports the administrative judge’s findings that
Ramey offered no reasonable excuse for the untimely
filing.
We agree with the government that the Board did not
abuse its discretion by dismissing Ramey’s petition for
review as untimely filed without a showing of good cause
for the delay. The Board’s rules set forth specific time
limits for filing a petition for review. See 5 C.F.R.
§ 1201.114(d)–(f). Pursuant to those rules, the Initial
Decision of the administrative judge clearly instructed
Ramey that any petition for review must be filed by the
deadline of October 19, 2010. Ramey does not contend
RAMEY v. MSPB 6
that he did not understand that instruction, nor has he
alleged that he was unable to submit the CUIAB decision
by the deadline. As the Board found, Ramey’s delay in
filing the CUIAB decision does not reflect due diligence on
his part.
In addition, because the proffered new evidence does
not relate to the validity of the settlement agreement, it is
unlikely to change the result of the initial decision of
which Ramey seeks review. Armstrong v. Dep’t of the
Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (“When a
petitioner delays before filing a petition for review, . . . or
when a petitioner presents new evidence supporting a
theory that he previously waived, . . . justice may require
waiving the timeliness requirement only when the new
evidence is likely to change the result originally reached.”
(emphasis added)). Finally, the Board found that the
personal difficulties alleged by Ramey did not constitute
good cause for his untimely filing. Given the applicable
law and standard of review noted above, we decline
Ramey’s invitation to substitute our own judgment for
that of the Board. See Zamot, 332 F.3d at 1377.
CONCLUSION
We have considered Ramey’s arguments and find
them unpersuasive. We therefore affirm the Board’s
judgment dismissing Ramey’s petition for review.
AFFIRMED
COSTS
No costs.