Lilly v. MSPB

Opinion

Case: 23-1099 Document: 51 Page: 1 Filed: 11/08/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

PATRICIA A. LILLY, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2023-1099 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-0353-16-0244-I-1. ______________________

Decided: November 8, 2023 ______________________

PATRICIA A. LILLY, Evanston, IL, pro se.

ELIZABETH W. FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, REYNA, and CHEN, Circuit Judges. PER CURIAM. Case: 23-1099 Document: 51 Page: 2 Filed: 11/08/2023

Patricia A. Lilly appeals from a final order of the United States Merit Systems Protection Board (“the Board”) dismissing her petition for review as untimely. Lilly v. U.S. Postal Serv., No. CH-0353-16-0244-I-1, 2022 WL 3693072 (M.S.P.B. Aug. 25, 2022) (“Final Order”). For the following reasons, we affirm. BACKGROUND On December 1, 2006, Lilly sustained a workplace in- jury while employed by the United States Postal Service (“the USPS”). Resp’t Suppl. App. 11–12. In the following years, she filed two complaints in the United States Dis- trict Court for the Northern District of Illinois alleging that the USPS (1) failed to accommodate her disability as re- quired under the Rehabilitation Act and retaliated against her for engaging in a protected activity (“Discrimination Complaint”), and (2) violated her rights under the Family Medical Leave Act (“FMLA Complaint”). Id. at 12. The parties resolved the Discrimination Complaint through a settlement agreement and separately stipulated to the withdrawal of the FMLA Complaint with prejudice. Id. Years later, on February 19, 2016, Lilly filed an appeal at the Board alleging that the USPS failed to properly ac- commodate her injuries from the 2006 incident and seeking to be restored to her prior employment position. Id. An administrative judge (“AJ”) issued an initial decision on May 19, 2016, dismissing Lilly’s appeal for lack of jurisdic- tion. Id. at 11–14. The AJ made that determination be- cause the settlement agreement used to resolve the Discrimination Complaint included a provision requiring Lilly to waive her right to file any further litigation stem- ming from those facts. Id. at 13. That initial decision also included a “Notice to Appellant” stating that the initial de- cision would become final on June 23, 2016 and that “[t]his is an important date because it is usually the last day on which you can file a petition for review with the Board.” Id. at 14. Case: 23-1099 Document: 51 Page: 3 Filed: 11/08/2023

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On July 20, 2016, over three weeks after the initial de- cision became final, Lilly filed a petition for review at the Board. Final Order at *1. Shortly thereafter, on July 28, 2016, the Board (1) acknowledged receipt of Lilly’s petition for rehearing, (2) informed Lilly that the petition was un- timely filed, and (3) notified Lilly that she was also re- quired to file a motion to accept the filing as timely and/or to ask the Board to waive or set aside the time limit (“mo- tion to waive”). Resp’t Suppl. App. 31–33. Lilly filed the motion to waive on August 8, 2016, which explained that Lilly’s father and maternal aunt had passed away and that Lilly was experiencing emotional and financial hardships in the aftermath. Id. at 39. Lilly’s motion also included a printout from a funeral home’s website that identified the date of her father’s death as April 22, 2016. Final Order at *2; Resp’t Suppl. App. 41. Additionally, the motion alleged that Lilly called the Board on August 4, 2016 to inquire which documents “would be sufficient to submit” alongside her motion but was hung up on by Board staff. Resp’t Suppl. App. 39. On August 25, 2022, the Board issued a final order denying Lilly’s motion to waive and dismissing Lilly’s peti- tion for review as untimely. Final Order at *1–3. The Board stated that the final order was “the final decision of the [Board] regarding the timeliness of the petition for re- view,” while the “initial decision remain[ed] the final deci- sion of the Board regarding the dismissal of the appeal for lack of jurisdiction.” Id. at *3 (emphases added). Lilly appealed to this court on October 24, 2022. ECF No. 1. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). DISCUSSION I As a threshold issue, Lilly’s opening brief contains ar- guments regarding the AJ’s initial decision (which became Case: 23-1099 Document: 51 Page: 4 Filed: 11/08/2023

the Board’s final decision on June 23, 2016) dismissing Lilly’s appeal for lack of jurisdiction, as well as the Board’s final order dismissing Lilly’s petition for review as un- timely. The Board argues on appeal that the scope of our review is limited to the Board’s final order dismissing Lilly’s petition for review as untimely. We agree with the Board. As previously noted, we have jurisdiction to hear this appeal under 5 U.S.C. § 7703(b)(1), which requires that “any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” Furthermore, under Board regulations, “[t]he ini- tial decision of the judge will become the Board’s final de- cision 35 days after issuance,” 5 C.F.R. § 1201.113, unless a party files a petition for review or requests vacatur for the purpose of accepting a settlement agreement into the record, id. § 1201.113(a). While “[t]he Board may extend the time limit for filing a petition for good cause shown,” id. § 1201.113(d), “[t]he untimely submission of a petition for review and motion for an extension of time to the [Board] does not prevent the initial decision of the admin- istrative judge from remaining the final decision of the [B]oard.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388 (Fed. Cir. 1994) (citing 5 U.S.C. § 7701(e)(1) (emphasis in original)). “Thus, the untimely submission of a petition for review and motion for an extension of time to the [Board] does not stop the running of the [60]-day statutory time limit in which to file an appeal to this court.” Id. In this case, the initial decision of the AJ was issued on May 19, 2016 and became the final decision of the Board on June 23, 2016, given Lilly’s failure to timely file her peti- tion for review. Lilly first filed her appeal in this court on October 24, 2022, well past 60 days after the initial decision became final. Lilly thus did not timely appeal to this court the Board’s final decision dismissing for lack of jurisdiction. Accordingly, we may not review that decision. See Oliva- res, 17 F.3d at 388. Case: 23-1099 Document: 51 Page: 5 Filed: 11/08/2023

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Lilly did, however, timely appeal the Board’s final or- der dismissing her petition for review as untimely that was issued on August 25, 2022, exactly 60 days before she filed her appeal in this court. The only issue properly presented on appeal, therefore, is whether or not the Board improp- erly dismissed Lilly’s untimely petition for review in its Au- gust 25, 2022 final order. II Because the Board “has broad discretion to control its own docket and we will not substitute our judgment for that of the [B]oard in this regard,” we will “affirm the [B]oard’s decision to dismiss an untimely filed petition for review unless the decision is shown to have been arbitrary, an abuse of discretion, or otherwise not in accordance with law.” Id. at 388–89 (internal quotation marks omitted); see also 5 U.S.C. § 7703(c). The Board will waive the 35-day time limit for filing a petition for review and allow an untimely filing only for good cause shown. 5 C.F.R. §§ 1201.12, 1201.114(g). “The appellant bears the burden of establishing ‘good cause’ for the delay.” Kerr v. Merit Sys. Prot. Bd., 908 F.3d 1307, 1311 (Fed. Cir. 2018) (citing 5 C.F.R. § 1201.56(b)(2)(i)). To establish good cause for an untimely petition for review, “[t]he appellant need not show an utter impossibility, but only that the delay was excusable in light of the particular facts and attending circumstances where diligence or ordi- nary prudence has been exercised.” Alonzo v. Dep’t of Air Force, 4 M.S.P.R. 180, 184 (1980). In assessing good cause, the Board will examine (1) the length of the delay, (2) the reasonableness of appellant’s excuse and his or her show- ing of due diligence, (3) whether or not the appellant is pro- ceeding pro se, and (4) whether or not the appellant has presented evidence of the existence of circumstances be- yond the appellant’s control which affected his or her abil- ity to comply with time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to Case: 23-1099 Document: 51 Page: 6 Filed: 11/08/2023

his or her inability to file a timely petition. Moorman v. Dep’t of Army, 68 M.S.P.R. 60, 62–63 (1995) (citations omit- ted), aff’d sub nom. Moorman v. Merit Sys. Prot. Bd., 79 F.3d 1167 (Fed. Cir. 1996). In the Board’s final order, it determined that Lilly had not made the requisite showing of good cause. Final Order at *1. In examining the factors identified in Moorman, the Board found that Lilly’s delay of almost one month was “significant” and that her inability to secure counsel due to financial cost was not good cause for the delay. Id. The Board also found that Lilly failed to show that the deaths in her family created circumstances beyond her control that affected her ability to comply with the time limits for a petition for review and that Lilly had failed to demon- strate due diligence in filing her petition. Id. at *2. The Board acknowledged Lilly’s allegations of being hung up on by Board staff but found that they did not create good cause because these calls occurred while Lilly was preparing her motion to waive, long after the filing deadline for the peti- tion for review. Id. In arguing that the Board’s evaluation of the length of delay was arbitrary, Lilly relies on two of our decisions: An- derson v. Dep’t of Just., 999 F.2d 532 (Fed. Cir. 1993) and Munson v. Merit Sys. Prot. Bd., 318 F.3d 1358 (Fed. Cir. 2003). However, the factual differences between those cases and Lilly’s situation render that precedent of little value here. In Anderson, the appellant filed his appeal one day late, far less than the 27-day delay at issue in this case. Anderson, 999 F.2d at 533. Furthermore, in Munson, we found that the appellant had not received notice of his ap- peal rights, such that the time for filing an appeal had not begun to run in the first place. Munson, 318 F.3d at 1362– 63. Conversely, Lilly has never contested receiving the in- itial decision, including its “Notice to Appellant” informing her of her appeal rights. Lilly has thus failed to show that the Board’s assessment of the length of delay was Case: 23-1099 Document: 51 Page: 7 Filed: 11/08/2023

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arbitrary, an abuse of discretion, or otherwise not in ac- cordance with law. Concerning the reasonableness of her excuse and her exercise of due diligence, Lilly argues that she informed the Board of the deaths in her family and provided sufficient information through documents and phone calls. Lilly ar- gues that she was unaware of the extent of evidence re- quired for a finding of good cause, in part, because the Board hung up on her when she called to inquire. However, as the Board correctly pointed out in its final order and again in its brief on appeal, the communications on record between Lilly and the Board occurred in connection with her motion to waive, weeks after the deadline for filing her petition for review had passed. Thus, while Lilly’s commu- nications with the Board may impact her showing of dili- gence in preparing her motion to waive, they have no bearing on Lilly’s diligence in meeting her petition for re- hearing’s filing deadline. See Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003) (“To establish good cause for a filing delay, an appellant must show that the delay was excusable under the circumstances and that the appellant exercised due diligence in attempting to meet the filing deadline.” (emphasis added) (citing Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982))). Lilly has thus failed to show that the Board’s treatment of that factor was arbitrary, an abuse of discretion, or otherwise not in accordance with law. Regarding circumstances beyond her control or una- voidable casualty, Lilly argues that the financial and emo- tional tolls of her father’s and aunt’s deaths, in combination with the pre-existing hardships resulting from her loss of employment, resulted in circumstances that reasonably prevented her from timely filing her petition for review. In support, Lilly points to (1) a submission to the Board, dated February 19, 2016, alleging that she “has suffered severe depression and anxiety” and “accumulated nearly six fig- ures in psychiatric and psychologist’s visits,” Pet’r App. 16– Case: 23-1099 Document: 51 Page: 8 Filed: 11/08/2023

17, and (2) cashier’s checks showing partial payment to a psychologist, id. at 56. However, Lilly’s reliance on that evidence is misplaced. Lilly’s submission to the Board pro- vides almost no insight into the circumstances following her father’s and aunt’s deaths, as it was filed on February 19, 2016, at least a month before her father or aunt died. Additionally, mere receipt of payment to a psychologist provides no detail regarding Lilly’s condition, including whether or not she would have been unavailable or pre- cluded from finding someone else to make appropriate ar- rangements. See Ford-Clifton v. Dep’t of Veterans Affs., 661 F.3d 655, 659 (Fed. Cir. 2011) (“The Board has held that when petitioners allege delay for medical reasons, they must affirmatively identify medical evidence that ad- dresses the entire period of delay and explain how the ill- ness prevented a timely filing.”). We therefore agree with the Board that “[Lilly] has failed to show that her father’s death, while unfortunate, created any circumstances be- yond her control that affected her ability to comply with the time limits.” Final Order at *2. For the first time in this case, in a supplemental ap- pendix attached to her reply brief in this appeal, Lilly pro- vides a letter from her psychologist describing her conditions. Pet’r Reply Suppl. App. 19–20. In that same supplemental appendix, Lilly also provides receipts and other documents from the period shortly following her fa- ther’s death. We decline to consider that evidence because it was not presented to the Board in the underlying pro- ceedings. See Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985) (“Petitioner cannot raise before this court an issue which could have been raised below but which was not.”); Lizut v. Dep’t of Army, 717 F.2d 1391, 1396 (Fed. Cir. 1983) (“Allowing a party to withhold im- portant issues from the [B]oard and later present them to this court would undermine the [B]oard’s authority.”). Finally, we acknowledge Lilly’s pro se status. However, we agree with the Board that “[Lilly’s] inability to secure Case: 23-1099 Document: 51 Page: 9 Filed: 11/08/2023

LILLY v. MSPB 9

an attorney due to financial cost is not good cause for [her] untimely filing.” Final Order at *1. Accordingly, Lilly has failed to show that the Board’s analysis of the Moorman factors in denying her motion to waive and dismissing her petition for review as untimely was arbitrary, an abuse of discretion, or otherwise not in accordance with law. III Lilly’s arguments on appeal also include allegations of judicial bias by the Board, specifically Vice Chairman and current Acting Chairman, Cathy A. Harris. Those allega- tions seem to involve a law firm that Acting Chairman Har- ris was previously employed at, as well as an unrelated class action. Lilly fails to explain how that demonstrates bias, and even admits that “she has never been represented by [Acting Chairman Harris’s previous employer] regard- ing the [relevant litigation].” Pet’r Br. 20. Furthermore, Lilly failed to raise that issue to the Board. See 5 C.F.R. § 1201.42(b) (requiring “a motion asking the judge to with- draw on the basis of personal bias or other disqualification” be filed “as soon as the party has reason to believe there is a basis for disqualification”). Lilly’s conclusory and under- developed allegations thus do not justify a finding of judi- cial bias. CONCLUSION We have considered Lilly’s remaining arguments and find them unpersuasive. For the foregoing reasons, we af- firm. AFFIRMED COSTS No costs.