N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JERRIDENE H. MOORE , Petitioner,

v.

MERIT SYSTEMS PROTEC TION BOARD , Respondent.

______________________

2014

- 3089

______________________ Petition for review of the Merit Systems Protection Board in No. AT

- 0752 -11- 0881 -I- 1.

______________________

Decided: September 16, 2014

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J ERRIDENE H. M OORE , of Red Oak, Georgia , pro se.

S TEPHEN F UNG , Attorney, Office of the General Cou nsel, Merit Systems Protection Board , of Washington, DC, for respondent. With him on the brief w as B RYAN G. P OLISUK , General Counsel

.

______________________

Before C HEN , L INN , and H UGHES , Circuit Judges.M OORE v. MSPB 2

P ER C URIAM

. After multiple appeals to the Merit Systems Prote ction Board, Jerridene H. Moore sought review of a dec ision by a board administrative judge dis missing her appeal. Her petition for review to the full board, however, was filed almost 18 months after th at decision became final. The Board will excuse untimely filings if a petitio ner establishes good cause for the delay. Because the Board did not abuse its discretion in finding that Ms. Moore did not show good cause for the delay in filing her appeal

, we affirm.

I
On April 7

, 2010, the Social Security Administration issued a decision removing Ms. M oore from service

. Two days later, a union representative filed a grievance on Ms. Moore’s behalf under the Administration’s negotiated grievance procedure

. According to Ms. Moore, the Admi nistration issued a decision under that procedure on April 19, 2010.

In May 2010, Ms. Moore appeal ed to the Board. A n administrative judge issued an initial decision, finding that

, under 5 U.S.C. § 7121(e)(1)

, Ms. M oore’s earlier grievance disqualified her from appealing to the Board. That initial decision became final in October 2010, after Ms. Moore failed to file a timely petition for review.
In March 2011, Ms. Moor e appealed to the Board again

. A n administrative judge dismissed Ms. M oore’s appeal in June 2011 , finding that she was collaterally estopped from relitigating the appeal of her removal. This dismissal became final in July 2011, after Ms. Moore again fail ed to file a timely petition for review.
In August 2011, Ms. M oore appeal ed to the Board for a third time

. The Board found that i t was un clear whether Ms. M oore was appealing her April 7, 2010 removal or an arbitrator’s decision from July 2011 that may haveM OORE v. MSPB 3

included discrimination claims. Accordingly, the Board ordered the parties to address whether the Board had jurisdiction over Ms. Moore’s appeal

. The Board mailed its order to Ms. Moore’s address of record on October 18, 2011. On October 26, 2011, she responded, requesting

“ review based on the discrimination that was not a ddressed in the arbitration hearings.” App. o f Resp’t 77.

On November 10 , 2011, an administrative j udge di smissed Ms. Moore’s third appeal under the doctrine of collateral estoppel , finding the appeal apparently ident ical to her two prior appeals. The Board mailed its dec ision to Ms. Moore’s address of record

. More than 18 months later, on June 11, 2013, Ms. M oore petition ed for review. After receiving notice that her pet ition was untimely, Ms. M oore ask ed the Board to set aside the time limit for filing her petition. Her motion alleged that she first received the Board’s November 10 , 2011 decision on May 29, 2013, when she went to a Regional Office to check on the progre ss of her case. She argued that the Board should waive the time limit because she was dia gnosed with bronchitis in June 2013, she had been “som ewhat homeless,” and she had “countless problems” receiving her mail. App. o f Resp’t 36.
In a final order, t he Board denied Ms. Moore’s motion

. As required by 5 C.F.R. § 1201.22(b)(3), t he Board pr esumed that Ms. Moore timely received the November 10

, 2011 decision. Finding that Ms. Moore failed to rebut this presumption and that her failure to monitor her case

a mounted to negligence , the Board dismissed her appeal as untimely

. The Board also ordered that Ms. Moore’s request for review of an arbitration decision based on discrimination be forwarded to the cle rk of the Board for docketing.

Ms. M oore appeals. We h ave jurisdiction under 28 U.S.C. § 1295(a)(9).M OORE v. MSPB 4

II

We must affirm the Board’s decision unless it is arb itrary, capricious, an abuse of discretion, or otherwise not in accordance with law ; obtained without procedures required by law, rule, or regulation havi ng been followed ; or unsupported by substantial evidence. 5 U.S.C. § 7703(c)

. Petitioners must request review of an initial Board decision within 35 days after the decision issues , or within 30 days of receipt of the decision if received more than five days after issuance. 5 C.F.R. § 1201.114(e).
The Board presume s that p roperly addressed corr espondence sent to the petitioner’s address of record was duly delivered to the addressee. 5 C.F.R. § 1201.22(b)(3). A petitioner “may not avoid service of a properly a ddressed and mailed decision by intentional or negligent conduct which frustrates actual service .” Id. T he Board

may excuse late filings , however, if a party shows good cause. 5 C.F.R. § 1201.114(g). Considerations bearing on whether or not t here is good cause for an untimely filing include the length of the delay, whether the appellant was notified of the time limit, whether circumstances existed beyond the appellant’ s control that affect ed her ability to comply w ith the deadline, whether the appellant was negligen t regarding the delay, and whether the appellant suffered any “ unavoidable casualty or misfortune ” that may have prevented timely filing. Zamot v. Merit Sys. Prot. Bd. , 332 F.3d 1374, 1377 (Fed. Cir. 2003) (citing Walls v. Merit Sys. Prot. Bd. , 29 F.3d 1578, 1582 (Fed. Cir. 1994)).

The Board found that Ms. Moore’s b ronchitis

— diagnosed almost 18 months after the November 10 , 2011 decision became final

— could not ex cuse her failure to file

a timely petition . The Board also found that Ms. Moore had not changed her address of record and , as required,M OORE v. MSPB 5

presumed that its initial decision was duly delivered to her. See 5 C.F.R. § 1201.22(b)(3)

. Further more , the Board found Ms. Moore had significant experience with Board procedures. Indeed, Ms. M oore filed two prior appeals, and she r esponded to Board inquiries regarding the appeals that were sent to her address of record . On at least two occasions in 2011

, Ms. M oore responded within days of receiving Board inquir ies. Additionally

, Ms. Moore stated that she knew of problems receiving mail at the address of record. Under our deferential standard of review, we cannot conclude that the Board erred in dismissing Ms. Moore’s appeal.

Ms. Moore alleges that the Bo ard failed to consider

“ discrimination ” and submits evidence of a serious injury in February 2011

. But Ms. M oore’s discrimi nation claims are not before us because t he Board ordered its clerk to docket these allegation s separately from the allegations at issue in this appeal

. And we cannot address evidence of Ms. M oore’s alleged February 2011 injury, as that ev idence was not part of the record before the Board

. See Oshiver v. Office of Pers

. Mgmt

. , 896 F.2d 540, 542 (Fed. Cir. 1990)

. We h ave considered Ms. M oore’s remaining arg umen ts and find them unpersuasive.

AFFIRMED

No costs.