N OTE : This disposition is nonprecedential.


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

______________________

RENATA M. LACHIEWICZ
, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2014

- 3052

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

- 0752

- 10

- 0490 -I- 1.

______________________

Decided: June 5, 2014

______________________

R ENATA M. L ACHIEWICZ , of Chicago, Illinois, pro se.

L INDSEY S CHRECKENGOST , Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief

was B RYAN G. P OLISUK , General Counsel.

______________________

Before N EWMAN
, L OURIE
, and D YK
, Circuit Judges.LACHIEWICZ v. MSPB 2

P ER C URIAM

. Renata Lachiewicz seeks review of the decision of the Merit Systems Protection Board (“Board” ) , dismissing her petition as untimely filed and forward ing her claim s alleging breach of a settlement agreement to the appr opriate regional office. We affirm

. B ACKGROUND

Ms. Lachiewicz was employed as an immigration o fficer in the Vermont Service Center of the Department of Homeland Security, United States Citizenship and Imm igration Services ( “a gency” ). On May 17, 2010, the agency removed Ms. Lachiewicz from her position

. Ms.
Lachiewicz appealed the removal to the Northeastern Regional Office of the Board, but entered into a settl ement agreement with the agency before the appeal was
heard

. The administrative judge reviewed the agree ment and concluded that the parties had understood and volu ntarily entered into it

. Ms. Lachiewicz’s removal appeal

was then dismissed based on the settlement agreement

. The Board’s decision sta ted: “T his initial decision will become final on September 29, 2010 unless a petition for review is filed by that date or the Board reopens the case
on its own motion

. ” Respondent’s Appendix (“ R.A. ”) 2. It also stated that Ms. Lachiewicz could file a petit ion for enforcement with th e regional Board office after the decision became final, if she had reason to beli e ve the

agency was not complying with the agreement.

More than two years later, o n December 19, 2012, Ms.
Lachiewicz filed a petition for review asking the Board to reopen her removal appeal. She alleged that she had entered into the agreement as a result of duress and that
the agency had not complied with t he agreement

. Ms

. Lachiewicz filed a motion requesting a waiver of the tim e limit for her review petition based on mental impairment and physical injuries

. The Board denied Ms. Lachiewicz’sLACHIEWICZ v. MSPB 3

motion, explaining that she did not identify the period during which she was impaired, did not provide evi dence of her medical co ndition or explain why such evidence was unavailable, and did not describe the effects of her med ical condition

. The Board found that she had alleged breach of the agreement, but that these allegations did
not constitute grounds for waiving the filing t ime limit.
The Board dismissed the petition for review of the Board’s dismissal as untimely filed. The Board forward ed Ms. Lachiewicz’s claims that the agency was not complying with the agreement to the regional office for adjudication.

Ms. Lachiewicz pet itioned this court for review of the Board’s decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION
Our scope of review in an appeal from a Board dec ision is limited. Paine v. Merit Sys. Prot. Bd.

, 4 67 F.3d 1344, 1346 (Fed. Cir. 200 6). We must affirm the Board’s decision unless 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); see also Rocha v. Merit Sys. Prot. Bd. , 688 F.3d 1307, 1310 (Fed. Cir. 2012) ; Paine , 567 F.3d at 1346. A petitioner “bears a ‘heavy burden’ to overturn the Board’s determination that good
cause has not been sho wn for her untimely filing .” Tu rman

- Kent v. Merit Sys. Prot. Bd. , 657 F.3d 1280, 1282 (Fed. Cir. 2011) ( quoting Zamot v. Merit Sys. Prot. Bd.

, 332 F.3d 1374, 1377 (Fed. Cir. 2003) & citing Mendoza v. Merit Sys. Prot. Bd. , 966 F.3d 650, 653 (Fed. Cir. 1992) (en banc) ).

A petition for review of a Board decision must be filed within 35 days of the decision’s issuance or within 30 days of the petitioner ’s receipt of the decision if the petitionerLACHIEWICZ v. MSPB 4

shows that she received the decision more t han 5 days after it is sued

. 5 C.F.R. § 1201.114(e); see 5 U.S.C § 7701(e)(1). If the petition is filed late , the Board may waive the time limit if the petitioner establishes good cause for the delay. Rocha , 688 F.3d at 1310; Zamot , 332 F.3d at 1377 (Fed. Cir. 2003). To obtain a waiver , a pet itioner must provide “[t]he reasons for failing to request an extension before the deadline for the submission, and a specific and detailed description of the circumstances causing the late filing, accompanied by supporting doc umentation or o ther evidence .” 5 C.F.R. § 1201.114(g). Although the Board’s regulations do not define the ci rcumstances that constitute good cause, relevant conside rations include : the length of the delay; whether appellant was n otified of the time limit or was otherwise aware of it; the existence of circumstances beyond the co ntrol of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show th at any neglect involved is excusable neglect; a sho wing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency which would result from waiver of the time limit.

Alonzo v. Dep’t of Air Force , 4 M.S.P.R. 180, 184 (1980) (footnotes omitted); see also Walls v. Merit Sys. Prot. Bd.

, 29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo , 4 M.S.P.R. at 184). With respect to delays allegedly resul ting from medical impairment, the Board has held that petitioners must “affirmatively identi fy medical evidence that addresses the entire period of delay and explain how the illness prevented a timely filing.” Ford

- Clifton v. Dep’t of Veteran Affairs , 661 F.3d 655, 659 (Fed. Cir. 2011) ( affirming Board where there was “no accompanying explana tion of how th[e] condition [deep vein thrombo sis]LACHIEWICZ v. MSPB 5

prevented a timely filing” (citing Jerusalem v. Dep’t of the
Air Force , 107 M .S.P.R. 660, 663, aff’d , 280 Fed. App ’ x 973 (Fed. Cir 2008) ; Lacy v. Dep’t of Navy , 78 M .S.P.R. 434, 437 (1998)) ; see also Turman

- Kent , 657 F.3d at 1282 (“ The Board did not abuse its discretion in demanding a well

documented explanation of the cause for [ the petitioner’s
six -year ] delay in filing her appeal.”)

. Here, the Board found that Ms. Lachiewicz did not establish good cause. We see no error in that determin ation. Ms. Lachiewicz asserted only that she “suffered [] temporary mental instability, as an effect of losing her job” and “also sustained physical injuries, due to the on the job acciden t, on February 02, 2010.” R.A. 76. She did

not identif y evidence related to her alleged mental and physical im pairment. She did not provide any information
about the dura tion or dates of her alleged medical pro blems and did not explain how they prevented h er from filing a timely petition.

The Board did not err in finding that Ms. Lachiewicz did not establish good cause for waiving the time limit for her petition based on her claims regarding the settlement agreement. The Board recognized that good cause might exist based on newly

- discovered evidence establishing the invalidity of the settlement agreement, but Ms.
Lachiewicz did not raise such a n argument or present such evidence before the Board and has not done so bef ore this court on appeal.

The Board also did not err in forwarding Ms. Lachiewicz’s claims of breach of the settlement agreement

to the regional office. The governing regulations permit parties to petition the Board “ for enforcement of the terms of a settlement agreement that has been entered into the record for the purpose of enforcement in an order or
decision under the Board's appellate jurisdiction. ” 5 C.F.R. § 1201.182 (a). But “[t] he petition must be filedLACHIEWICZ v. MSPB 6

promptly with the regional or field offic e that issued the
initial decision .” Id. T he Board has held that “[w]here allegations of noncompliance are raised for the first time before the full Board, the Board will forward the submi ssion to the appropriate regional office for adjudication as a petit ion for enforcement.” Harris v. U.S. Postal Serv. , 59 M.S.P.R. 222, 225 (1993) (citing Sharkey v. Dep’t of Transp. , 56 M .S.P.R. 156, 158 (1992) ; Davis v. Dep’t of Navy , 55 M .S.P.R. 109, 112 (1992) ). Ms. Lachiewicz has not established any a buse of discretion by the Board in sending her breach claims for adjudication by the regional office.

AFFIRMED

C OSTS

No costs.