NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3286 

MARIA D. ROBINSON, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Maria D. Robinson, of Murrieta, California, pro se. 

Stephanie M. Conley, 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. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit

 2009-3286 

MARIA D. ROBINSON, 

Petitioner, 

 v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Petition for review of the Merit Systems Protection Board in SF0752090246-I-1. 

__________________________ 

DECIDED: February 17, 2010 

___________________________ 

Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges. 

NEWMAN, Circuit Judge. 

Maria D. Robinson appeals from a final decision of the Merit Systems Protection 

Board (“MSPB” or “Board”) dismissing her petition as untimely filed without showing good 

cause for the delay. Robinson v. Dep’t of the Navy, No. SF-0752090246-I-1 (M.S.P.B. July 

14, 2009). We affirm the Board’s decision. 
BACKGROUND 

Ms. Robinson was employed as a secretary for the Department of the Navy. After a 

hearing, on November 5, 2008 the Navy issued a notice of decision removing Ms. Robinson 

from her position, effective November 5, 2008, because of “falsification of time and 

attendance records.” The record reflects that Ms. Robinson was represented by counsel, 

Mr. Todd J. Hilts. Ms. Robinson states that she obtained counsel two days before the 

hearing. 

Ms. Robinson states that she received the Navy’s notice of decision on November 

10, 2008. The notice stated her right to appeal to the Board within 30 days of the removal 

date of November 5, 2008, or within 30 days of her receipt of the removal notice, whichever 

was later, pursuant to 5 C.F.R. §1201.22(b)(1), and informed her that §1201.22(c) provides 

for dismissal of an untimely appeal. 

On November 14, 2008, Ms. Robinson’s attorney sent a letter to the Navy requesting 

clarification of the Navy’s decision. On November 15, 2008, the Navy responded that Ms. 

Robinson had “received all applicable statutory procedural rights,” and that if she disputed 

the removal decision, she could appeal it as provided in the notice of decision. On 

December 4, 2008, Mr. Hilts sent another letter to the Navy, attaching his first letter, again 

requesting clarification of the Navy’s decision, and requesting a 30-day extension of time to 

file an appeal, to January 5, 2009. On December 6, 2008, the Navy denied the request for 

an extension, and suggested that Mr. Hilts “file within the prescribed timeframe.” The 

appeal was filed on January 9, 2009. 

On January 28, 2009 the Administrative Judge issued an Acknowledgement Order 

stating that the appeal appeared to be untimely, and directing Ms. Robinson to file evidence 

2009-3286 2
and argument showing either that her appeal was timely filed, or that good cause justified 

the delay. Ms. Robinson did not respond. 

On February 18, 2009 the Navy moved to dismiss the appeal as untimely filed. The 

Administrative Judge then issued an Order to Show Cause again directing Ms. Robinson to 

explain why her appeal should not be dismissed. Ms. Robinson’s initial appeal form had 

stated that she had filed a formal discrimination complaint against the Navy on July 11, 

2008, which predated her removal; the Administrative Judge referred to this statement in 

the show cause order, and stated that if such a discrimination complaint had been filed and 

was still pending, then her appeal might have been prematurely filed, for under 5 C.F.R. 

§1201.154(b)(2) a Board appeal raising discrimination issues is premature unless the 

agency has resolved a pending formal complaint of discrimination, or a 120-day period from 

the filing of that complaint has elapsed. 

Ms. Robinson’s response to the show cause order, submitted by attorney Hilts on 

March 3, 2009, stated that she had filed a “grievance for a security breach” with the Navy 

on July 11, 2008, not a formal discrimination complaint. A copy of the grievance form was 

attached to the response. Mr. Hilts stated that “Appellant mistakenly believed the 

grievance needed to be resolved prior to filing the appeal”; however, he continued to assert 

that §1201.154(b)(2) rendered her appeal timely. Mr. Hilts stated that clarification of the 

Navy’s removal decision was needed to clarify Ms. Robinson’s appeal rights, and noted that 

the Navy had offered no such clarification in its responses to his letters of November 14, 

2008 and December 4, 2008. 

Mr. Hilts also invoked a provision of 5 C.F.R. §1201.22(b)(1), referenced in the 

notice letter, whereby the time to file an appeal is extended by 30 days, to “a total of 60 

2009-3286 3
days,” if the appellant and the agency “mutually agree in writing to attempt to resolve their 

dispute through an alternative dispute resolution process.” Mr. Hilts stated that “[e]ven 

though there is no agreement in writing regarding alternative dispute resolution, Appellant’s 

Representative had a few conversations with Commander LaFavour [the deciding official] 

regarding alternative dispute resolution and through these conversations took Commander 

LaFavour at [his] word that the extension of filing an appeal would be extended based on 

this ADR premise.” Mr. Hilts argued that all of these considerations amounted to good 

cause for the untimely filing, and justified waiver of the time in keeping with 5 C.F.R. 

§1201.22(c). 

In rebuttal, the Navy submitted a declaration by Commander LaFavour stating that 

he had no conversations with Mr. Hilts regarding alternative dispute resolution. The 

Administrative Judge then issued a second Order to Show Cause, ordering Mr. Hilts to 

attest to the dates and content of the conversations regarding alternative dispute resolution. 

 Mr. Hilts complied, submitting a declaration in which he stated, “I did not have any 

conversations with Commander LaFavour.” Instead he stated that he had interpreted the 

30-day extension referenced in the notice of removal “as a matter of right.” He also stated, 

“I apologize for implying that I had conversations with Commander LaFavour.” 

On April 6, 2009 the Administrative Judge issued an initial decision dismissing Ms. 

Robinson’s appeal pursuant to 5 C.F.R. §1201.22(c). The Administrative Judge concluded 

that the appeal was untimely, and held that 5 C.F.R. §1201.154(a)(2) did not apply. On the 

question of good cause for the late filing, the Administrative Judge rejected the argument 

that the Navy’s failure to provide clarification of its decision hindered Ms. Robinson’s ability 

to file an appeal, rejected the argument that a 30-day continuance was a “matter of right,” 

2009-3286 4
and rejected the argument that Ms. Robinson acted with due diligence in pursuing her 

appeal. The Administrative Judge determined that Ms. Robinson failed to establish good 

cause for the untimely filing, and accordingly declined to waive the 30-day time limit. The 

full Board denied review. 

Ms. Robinson now appeals the dismissal. Ms. Robinson is proceeding pro se before 

this court. 

DISCUSSION 

Our scope of review in an appeal from a decision of the Board is limited. We review 

the Board’s decision to determine whether it was “(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). 

On appeal, Ms. Robinson does not identify any error in the Board’s determination 

that her appeal was untimely, and that there was not good cause for the late filing. Rather, 

she states that the Board’s dismissal was improper because the Board did not address the 

underlying merits of her case. However, the Board is not required to decide the merits of a 

case that is untimely filed. Accordingly, we have considered the issues of timeliness. 

The Board’s regulations require that “an appeal must be filed no later than 30 days 

after the effective date, if any, of the action being appealed, or 30 days after the date of the 

appellant’s receipt of the agency’s decision, whichever is later.” 5 C.F.R. §1201.22(b)(1). If 

an appeal is not filed within this time period, “it will be dismissed as untimely filed unless a 

good reason for the delay is shown.” 5 C.F.R. §1201.22(c). To establish good cause for 

the delay, the Board requires the appellant to show that she exercised diligence or ordinary 

2009-3286 5
prudence under the circumstances. See Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 

(Fed. Cir. 1982). In applying this standard, the Board considers such factors as 

the length of the delay; whether the appellant was notified of the time limit or 

was otherwise aware of it; the existence of circumstances beyond the control 

of the appellant which affected [her] 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 that any neglect involved is excusable 

neglect; a showing 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. 

Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo v. Dep’t 

of the Air Force, 4 M.S.P.R. 180, 184 (1980)). An appellant’s lack of knowledge when 

proceeding pro se has also been deemed relevant. See id. at 1583. The determination 

whether good cause has been shown under the circumstances “is a matter committed to 

the Board’s discretion and this court will not substitute its judgment for that of the Board.” 

Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). 

While Ms. Robinson does not dispute that her appeal was filed more than 30 days 

after she received the Navy’s notification letter, she argued that her appeal was timely filed 

because a grievance she filed with the Navy on July 11, 2008, alleging that a security 

breach occurred, had not been resolved. She argued that this grievance placed her appeal 

under 5 C.F.R. §1201.154(b)(2), which states: 

(b) If the appellant has filed a timely formal complaint of discrimination 

with the agency: 

. . . 

(2) If the agency has not resolved the matter or issued a final decision 

on the formal complaint within 120 days, the appellant may appeal the matter 

directly to the Board at any time after the expiration of 120 calendar days. 

Accordingly, Ms. Robinson contended that she could file her appeal “at any time” after this 

120-day period. The Administrative Judge, however, determined that §1201.154(b) applies 

2009-3286 6
only to “formal complaints of discrimination,” not informal grievances. The Administrative 

Judge found that Ms. Robinson offered no evidence that she filed a formal complaint of 

discrimination, and concluded that §1201.154(b) is inapplicable. We discern no error in the 

determination that Ms. Robinson’s grievance regarding a security breach did not constitute 

a formal complaint of discrimination that affected the time for filing an appeal of her 

removal. 

On the issue of good cause, the Administrative Judge considered each of her 

arguments, and explained why they did not show good cause. The Administrative Judge 

first rejected her suggestion that the Navy hindered her appeal by refusing to clarify its 

removal decision, noting that Ms. Robinson’s counsel had been twice reminded by the 

Navy of the path of appeal. The Administrative Judge next found no support for Ms. 

Robinson’s suggestion that a 30-day extension had been authorized pursuant to 5 C.F.R. 

§1201.22(b)(1) based on some form of agreement to pursue alternative dispute resolution. 

We see no error in these determinations. 

Finally, the Administrative Judge rejected Ms. Robinson’s argument that she had 

exercised diligence and should not be held responsible for any errors by her attorney. The 

Administrative Judge noted that Ms. Robinson had submitted no evidence in support of her 

alleged diligence. An appellant is generally responsible for any errors of her chosen 

representative, apart from limited circumstances where, in the interest of fairness, an 

appellant should not be penalized if her representative actually thwarts her own efforts to 

prosecute her appeal. E.g., White v. Dep’t of Justice, 103 M.S.P.R. 312, 316 ¶12 (2006) 

(“[A]bsent a specific showing that he actively monitored the progress of his appeal but his 

representative thwarted his diligent efforts to pursue the appeal, the appellant cannot blame 

2009-3286 7
2009-3286 8

his representative’s alleged negligence in seeking to excuse a filing delay.”), aff’d 230 Fed. 

Appx. 976 (Fed. Cir. 2007). The Administrative Judge found that Ms. Robinson had not 

alleged any deception or other affirmative wrongdoing by her representative, and concluded 

that mere negligence, even if shown, would not suffice to constitute good cause for the late 

filing. This conclusion is consistent with this court’s jurisprudence, and that of the Supreme 

Court. See, e.g., Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986) (citing, 

e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)).1

After rejecting each of these arguments, and reviewing all of the circumstances of 

the case including the length of the delay, the fact that the Ms. Robinson was represented 

by counsel at the relevant times, and the clear notice of her appeal rights and the specific 

time limits, the Administrative Judge did not err in determining that good cause had not 

been shown to excuse the late filing. The review of the factors relevant to establishing 

good cause was thorough, and we discern no abuse of discretion in the decision of this 

issue. 

The dismissal of the appeal as not timely filed is affirmed. 

No costs. 

 1 We assume that attorney Hilts has returned the unused portion of Ms. 

Robinson’s retainer payment.