Weiss v. Merit Systems Protection Board

603 F. App'x 938
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 10, 2015
Docket2014-3105
StatusUnpublished

This text of 603 F. App'x 938 (Weiss v. Merit Systems Protection Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiss v. Merit Systems Protection Board, 603 F. App'x 938 (Fed. Cir. 2015).

Opinion

PER CURIAM.

After untimely submitting her petition for review of the Merit Systems Protection Board’s initial decision, Robin Weiss asked the Board to waive its timely filing requirement for good cause. The Board denied Ms. Weiss’s request, finding that she had not shown that her alleged medical illness and technical issues prevented her from timely filing. Because the Board’s decision was not an abuse of discretion, we affirm.

I

On June 4, 2010, the Department of the Interior terminated Ms. Weiss’s probationary appointment as a Land Law Assistant with the Department’s Bureau of Land Management in Springfield, Virginia. Ms. Weiss appealed the Department’s termination with the Merit Systems Protection *939 Board, alleging discrimination on the basis of age, marital status, race, religion, national origin; and alleging retaliation for her participation in filing a complaint with the Equal Employment Opportunity Commission.

On February 3, 2011, the Administrative Judge issued an initial decision finding that the Board did not have- jurisdiction over Ms. Weiss’s claims because she was terminated during her probationary period, she failed to make a non-frivolous allegation of political or marital status discrimination, and she failed to show that she exhausted the administrative remedies available for Whistleblower Protection Act claims. Ms. Weiss appealed this decision. The Board affirmed the dismissal of the discrimination claims, but vacated the dismissal of the Whistleblower Protection Act claims for failure to exhaust her administrative remedies. The Board ordered the Administrative Judge to fully inform the pai’ties of the jurisdictional requirements in an individual-right:of-aetion Whistle-blower Protection Act appeal.

On November 21, 2012, the Administrative Judge issued an initial decision finding that Ms. Weiss had not proven by a preponderance of the evidence that the Department retaliated against her due to disclosures protected under the Whistle-blower’s Protection Act. Accordingly, the Administrative Judge denied Ms. Weiss’s request for corrective action.

On December 19, 2012, Ms. Weiss requested an extension of time to file her petition for review of the Administrative Judge’s November 21, 2012 decision. The Board granted Ms. Weiss’s request and extended the deadline from December 26, 2012 to January 7, 2013.

Ms. Weiss filed her petition for review on January 8, 2013. On January 15, 2013, the Board-apparently unaware that it had extended Ms. Weiss’s deadline to January 7, 2013-notified Ms. Weiss that her petition appeared to be untimely because it was not filed by December 26, 2012. The Board’s notification letter stated that a petition for review that appears to be untimely must be filed with a motion (1) to accept the filing as timely, and/or (2) to waive the time limit for good cause. The notification letter also stated that any such motion Ms. Weiss may wish to file must be filed by January 30, 2013.

On July 22, 2013 — over six months later — Ms. Weiss filed a “motion to accept filing as timely or to ask the Board to waive or set aside the time limit.” Resp’t’s App. 44-59. This motion claimed that Ms. Weiss’s petition was untimely due to “technical issues regarding e-filing and other circumstances[.]” Id.

On December 27, 2013, the Board issued an order, explaining that its January 15, 2013 notification letter misstated the petition for review’s deadline as December 26, 2012 instead of January 7, 2013. Due to this error, the Board granted Ms. Weiss an additional opportunity through January 6, 2014, to submit additional evidence and argument supporting her motion for leave to waive the timely filing requirement.

On January 7, 2014, one day after the deadline, Ms. Weiss submitted another motion to waive the Board’s time limit. In this motion, Ms. Weiss claimed that her petition was untimely because she was ill. She made no mention of the technical issues she alleged in her July 22, 2013 motion.

On February 28, 2014, the Board issued a final order dismissing Ms. Weiss’s petition as untimely filed. The Board noted that although her deadline had been extended to January 7, 2013, Ms. Weiss did not file her petition until January 8, 2013. The Board acknowledged that Ms. Weiss was pro se and that the 1-day delay was *940 minimal, but found that she had failed to show good cause for the delay. Ms. Weiss appeals.

II

A petition for review of an administrative judge’s decision must be filed with the Board within 35 days. 5 C.F.R. § 1201.114(e). The Board has discretion to waive this requirement if a party requests such waiver and shows good cause. 5 C.F.R. §§ 1201.12 and 1201.114(f), (g). Petitioners seeking a waiver must file “[a] specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence.” Ford-Clifton v. Dep’t of Veterans Affairs, 661 F.3d 655, 659 (Fed.Cir.2011) (citation omitted). Although the length of delay is a factor the Board must consider in its analysis of whether to waive the timely filing requirement, it is not the only factor to be considered. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.Cir.1994) (explaining that other factors properly considered by the Board include: the appellant’s notice of the time limit, the existence of circumstances beyond the appellant’s control, the appellant’s negligence, any excusable • neglect, unavoidable casualty or misfortune, and the extent and nature of prejudice to the agency) (citation omitted).

“[Wjhether 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.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.Cir.1992) (en banc). Accordingly, an appellant bears a “heavy burden” to overturn the Board’s determination that good cause has not been shown for an untimely filing. Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280, 1282 (Fed.Cir.2011) (internal quotation omitted). Further, we must affirm the Board’s underlying factual determinations unless they are not supported by substantial evidence. 5 U.S.C. § 7703(c).

Ms. Weiss argues that we should reverse the Board because her failure to timely file a petition was due to medical illness and- technical issues with the Board’s e-filing system.

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Related

Juanita C. Mendoza v. Merit Systems Protection Board
966 F.2d 650 (Federal Circuit, 1992)
TURMAN-KENT v. Merit Systems Protection Bd.
657 F.3d 1280 (Federal Circuit, 2011)
FORD-CLIFTON v. Department of Veterans Affairs
661 F.3d 655 (Federal Circuit, 2011)
Carlton A. Walls v. Merit Systems Protection Board
29 F.3d 1578 (Federal Circuit, 1994)

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