NOTE: This disposition is nonprecedential.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, Ca lifornia, pro se. Stephanie M. Conley , Attorney, Office of the Ge neral Counsel, Merit Systems Protection Board, of Washi ngton, DC, for respondent. With her on the brief were James M. Eisenmann , General Counsel, and Keisha Dawn Bell , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Syst ems 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 dec ision of the Merit Systems Protection Board (“MSPB” or “Board”) dism issing her petition as untim ely 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 fo r 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, effectiv e 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. Robi nson states that she obtained counsel two days before the hearing. Ms. Robinson states that she received t he Navy’s notice of decision on November 10, 2008. The notice st ated her right to appeal to the B oard within 30 days of the removal date of November 5, 2008, or wit hin 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 atto rney 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 pr ocedural 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 Dece mber 6, 2008, the Navy denied the request for an extension, and suggested that Mr. Hilts “file within the pr escribed 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 2and 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 dism iss the appeal as untimely filed. The Administrative Judge then issued an Order to S how Cause again directing Ms. Robinson to explain why her appeal should not be dismiss ed. Ms. Robinson’s initial appeal form had stated that she had filed a fo rmal discrimination complaint against the Navy on July 11, 2008, which predated her removal; the Administra tive Judge referred to this statement in the show cause order, and stated t hat if such a discrimination complaint had been filed and was still pending, then her appeal might have been pr ematurely filed, fo r under 5 C.F.R. §1201.154(b)(2) a Board appeal raising discrimi nation issues is pr emature 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 caus e 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 co mplaint. A copy of the grievance form was attached to the response. Mr. Hilts stat ed that “Appellant mistakenly believed the grievance needed to be resolved prior to filing t he appeal”; however, he continued to assert that §1201.154(b)(2) rendered her appeal timely. Mr. Hilts stated that cl arification of the Navy’s removal decision was needed to clarify Ms. Robinson’s appeal ri ghts, and noted that the Navy had offered no such clarif ication 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 3days,” if the appellant and the agency “mutually agree in writing to attempt to resolve their dispute through an alternative dispute resoluti on process.” Mr. Hilts stated that “[e]ven though there is no agreement in writing regarding alternative dis pute 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. Hilt s argued that all of these c onsiderations amounted to good cause for the untimely filing, and justified waiver of the ti me in keeping with 5 C.F.R. §1201.22(c). In rebuttal, the Navy submitted a declara tion 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 conversa tions regarding alternat ive dispute resolution. Mr. Hilts complied, submitting a declaration in which he stated, “I did not have any conversations with Commander LaFavour.” In stead he stated that he had interpreted the 30-day extension referenced in t he notice of removal “as a matter of right.” He also stated, “I apologize for implying that I had c onversations 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 hinder ed Ms. Robinson’s ability to file an appeal, rejected the argument that a 30-day conti nuance was a “matter of right,”

2009-3286 4and rejected the argument that Ms. Robins on acted with due diligence in pursuing her appeal. The Administrative Judge determined t hat 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 decisi on of the Board is limited. We review the Board’s decision to determi ne whether it was “(1) arbitrar y, capricious, an abuse of discretion, or otherwis e 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 untimel y, 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 requi red 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 acti on being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichev er 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 s hown.” 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 5prudence 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; whet her the appellant was notifi ed of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affect ed [her] ability to comply with the time limits; the degree to which negligence by the appe llant has been shown to be present or absent; circumstances which show t hat 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 ci rcumstances “is a matter committed to the Board’s discretion and this c ourt will not substitute its judgm ent 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 lette r, 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 re solved. 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 a fter the expiration of 120 calendar days. Accordingly, Ms. Robinson contended that she coul d file her appeal “at any time” after this 120-day period. The Administrative Judge, however, determined t hat §1201.154(b) applies

2009-3286 6only to “formal complaints of discrimination, ” not informal grievances. The Administrative Judge found that Ms. Robinson o ffered 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 regar ding a security breach did not constitute a formal complaint of discrimination that a ffected 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 hi ndered her appeal by refusing to clarify its removal decision, noting that Ms. Robi nson’s counsel had been twice reminded by the Navy of the path of appeal. The Administ rative Judge next found no support for Ms. Robinson’s suggestion that a 30-day extens ion had been authorized purs uant 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 reject ed Ms. Robinson’s argument that she had exercised diligence and should not be held responsib le 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 limit ed circumstances where, in t he 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 t hat 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 72009-3286 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, t he fact that the Ms. Robinson was represented by counsel at the relevant times, and the clear notice of her appeal ri ghts 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 revi ew 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.