NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

2006-3218

ARTHUR D. MOBLEY, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

________________________ DECIDED: October 10, 2006

________________________
Before BRYSON Circuit Judge , CLEVENGER, Senior Circuit Judge , and GAJARSA, Circuit Judge

. PER CURIAM. Arthur D. Mobley petitions this court for review of the decision of the Merit Systems Protection Board (the "Board") dismissing his Board appeal based upon the doctrine of collateral estoppel. Mobley v. U.S. Postal Serv. , Docket No. PH-0752-05- 0551-I-1 (M.S.P.B. Nov. 1, 2005) (" Initial Decision "); Mobley v. U.S. Postal Serv. , 101 M.S.P.R. 200 (2006) (" Final Order "). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). For the reasons set forth in this opinion, we affirm

.I Mobley's petition has its origins in ev ents that occurred sixteen years ago and that have already been the subject of seve ral Board pr oceedings and one opinion of this court. In September of 1990, the United States Postal Serv ice iss ued Mobley a Notic e of Proposed Adverse Action ch arging him with multiple in cidents of sexual harassment and propos ing to remove him from his employm ent. [RA at 83] The notice advised that Mobley would be able "to review the material relied on to support the reasons" for the proposed r e moval at t he Postal Service's L abor Relations Office, and gave Mobley 10 calendar days in whic h to respond. [RA at 85] On October 24, 1990, the Postal Service issued its Letter of Decision terminating Mobley 's employment. Mobley timely appealed his removal to the Board. Less than a month later, however, the Post al Service notified Mobley that the Letter of Decis i on was being "rescinded," in order to afford Mobley " an additiona l opportunity to respond to the c h arges." [RA at 86] Mobley was retr oactively reinstated to his original pay grade, but was not retur ned to his position of postmaster; instead, he was returned to administrative l eave status. [RA at 86] Following rescission of the removal, the Postal Service moved to dis m iss Mobley's Board action as moot. On Nove mber 30, 1990, the adm inistrative law judge issued an order to show cause why the appea l should not be dismissed as moot. Mobley, through counsel, argued that the agency' s res c ission of t he removal order was little more than an attempt to "clean up" a re moval that was plagued with signific ant irregularities. He als o poi nted out that the removal, "e ven if technically rescinded at present, is . . . neverthele ss imminent," since the agency continued to ac tively purs u e

2006-3218 2the charges against Mobley, and that di smissing the pending appeal would simply require that another, essentially identical appeal be filed shortl y thereafter. [RA at 89] Mobley did not argue that the agency's " r escission" was incomplete and therefore inadequate to moot the appeal. [RA at 87-90; RA at 82] The adm inistrative law judge dis m issed Mobl ey's appeal as moot, noting that "the agency has furnished evidence t hat it restor ed the appellant to t he status quo ante by canceling t he removal action and retroactive ly restoring him to a pay status." Mobley v. U.S. Postal Serv. , Docket No. DC7529110081 (M.S.P.B

. De c. 24, 1990). That decision became final on January 28, 1991. There is no indication in the record that Mobley filed a petition f o r review of the init ial decision by the full Board or for review of the final order by this court. Following dismissal of the in itial Board appeal, the Post al Servic e pr oceeded with its removal action against Mobley . A second Le tter of Decision was issued on February 20, 1991. [RA at 93] This time, the Postal Service elected to "exercise leniency" and reduced Mobley's penalty to demotion and r ea ssignment to a non-supervisory position. [RA at 93] Mobley ag ain appealed to the Board, whic h he ld a hearing on M a y 7, 1991. During that hearing, the parties reached an oral settlement agreement, which was subsequently reduced to writ ing and entered into the reco rd. On May 28, 1991, the administrative law judge issued an initial decision dismis sing Mobley's appeal as settled. The initial decision bec ame final on July 2, 1991. On October 24, 1991, however, Mobley fi led a petition for enf orcement of the settlement agreement. The adm inistrative la w judge denied the petition in an initial decision is sued on January 30, 1992, and the fu ll Board denied Mobley's petition for

2006-3218 3review in an order dated May 8, 1992, rendering the initial dec ision final on that date. Mobley v. U.S. Postal Serv. , 53 M.S.P.R. 680 (1992) (Table). On July 7, 1992, Mobley filed a docu ment styled "REQ UEST AND MOTION FOR JOINDER OF THE APP EA LS, TO REOPE N , RECONSIDER A ND RE ST ATE APPEAL S, AND TO SET ASIDE SETTL EMENT AGREEMENT." Mobley v. U.S. Postal Serv. , 55 M.S.P.R. 467, 470 (1992). The Clerk of t he Board n o tified h i m that, "to the extent that he was filing a pe tition for review of the re moval and demotion ap peals, his petition appeared to be unt imely filed," and directed him to submit an affidavit showing either that the petit io n was timely or that good cause existed for the delay. Id. Mobley' s affidavit asserted that the Postal Serv ice obtained t he settlem ent agreement of hi s demotion appeal by fr aud, and th at Mobley could not have kn o w n of the fraud until after the filing p e riod for h i s petition had passe d. Id. He therefore requested that the settlement agreement be set aside and both his appeals reinstated. Id. The Board concluded that the petition for review was untim ely as to both decisions and that Mobley had failed to dem onstrate good cause for the unti m eliness. Id. at 471-72. With respect to Mobley's or iginal appeal, the Board held, the alleged fraud occurred more than four months after the decision beca m e final, and therefore was irrelev ant to that decision. As for the second appeal— the appeal that was dismissed after the settlement agreement was reached—Mobley argued that the Postal Service ac ted fraudulently by encouraging hi s former co-workers "to pursue actions against him in civil and criminal proceedings." Id. at 472. The Board rejected Mobley's position, pointing out that Mobley knew or should have known of the government's assistance to his former employees' state-c ourt actions a full y ear before he filed his

2006-3218 4petition for review. The Board concluded that in, li ght of that knowle dge, Mobley could not demonstrate good cause for his untimely f ilin g. Finally, the Board refused to set aside the settlement agreement, concluding that by its terms the agreement did not prevent agency personnel from assisting Mobl ey's accusers in their legal actions against him. Id. at 474. The Board therefore dismis sed Moble y 's petition as untimely. Mobley appealed to this court, which affirmed wit hout opinion. Mobley v

. U.S. Postal Serv. , 6 F.3d 787 (Fed. Cir. 1993) (Table). On August 3, 2005—fifteen years afte r the underlying events—Mobley filed another appeal to the Board challenging the original removal action. He argued tha t because the Postal Service's "r escission" of its original re moval notice di d not restore him to his postmaster position, it did not return him to the status quo ante, and therefore, under longst anding principles of law, was insufficient to moot his appea l

. Initial Dec i sion at 2. The administrative law j udge dismissed the appeal in a brief opinion on the basis of collateral estoppel, holdin g that "[t]he i ssue of mootness was raised and decided in the 1990 appeal" and noting that the new appeal would be barred even if the "the prior decisio n was reached through an erroneous application of the law." Id. at 3. M obley petitioned for review by the full Boar d, whic h denied review in a final order filed on Februar y 6, 2005. Final Order at 2. Mobley then fi led a petition for review in this court. II A Our scope of review in an appeal from a Board decision is limited. This court must affirm the Board’s decis ion unless it is: “(1) arbitr ary, capricious, an abuse of

2006-3218 5discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Walls v. Merit Sys. Prot. Bd. , 29 F.3d 1578, 1581 (Fed. Cir. 1994). Questions involv ing "[t]imeliness of petition for review and extension for good caus e are matters committed to the board's discretion." Strickland v. Merit Sys. Protection Bd. , 748 F.2d 681, 683 (Fed. Cir . 1984). This court will disturb the Board's j udgment about such questions onl y upon a showing that the Board has abused that discretion. Id. B The precis e scope and nature of Mobley's assignment s of error are unclear, but his submis sions focus primarily upon two is s ues: whether the Boar d properly dismiss ed his initial appeal as moot, and whether the Postal Ser v ice's disc iplinary actions violated Mobley's c onstitutional right to due process of law. F o r the reas ons that follo w, we affirm the Board's ruling. The issue of mootness was expr essly rais ed and cons idered by the Board in its 1990 proc eeding. T h is court has recently noted that "[l] ike other tribunals , the Boar d may apply collateral estoppel where: (i) the issue previously adj udicated is identical with that now presented, (ii) that issue was actually litigat ed in the prior case, (iii) the previous determination of that issue was necessary to the end-decision then made, and (iv) the party precluded was fully represented in the prior action." Morgan v. Dep't of Energy , 424 F.3d 1271, 1274 (Fed. Cir. 2005) (citati ons omitted). There is no question that all four of thes e fa ctors are present in Mobley's case, and Mobley does not seriously dispute that they ar e. He directs his argument, instead, to the merits of the

2006-3218 6mootness issue, pointing out t hat he was "never returned to duty status" and thus not to the "status quo ante" necessary to r ender his appeal moot under numerous Board precedents

. See, e.g. , Henry v. U.S. Postal Serv. , 100 M.S.P.R. 399, 402 (2005) (noting that "[a]n agency's un ilat e ral modification of its adverse action after an appeal has been filed does not divest the Board of jurisdiction unless" the appellant is returned to the status quo ant e); Harris v

. Dep't of the Air Forc e , 96 M.S.P.R. 193, 196 (2004) (stating that "return to the status quo ante requires return, with back pay, to a position of the same grade, pay, status , and tenure as the one occupied before the agency's action"). Whatever the merits of Mobley' s ar guments on mootness, however, he makes them too late. The administrative law jud ge's initial decision m ooting the case wa s appealable to the full Board, and the Board' s final decisi on could have been appealed t o this court. Mobley chose not to pursue ei ther avenue of redress, and the tim e for doing so has long since passed. The same is true of Mobley's constitutional due process arguments. Constitutional claims, like ot her claims, are subject to applicable time limitations. See,
e.g. , DuMarce v. Scarlett , 446 F.3d 1294 (Fed. Cir. 2006) (dismissing Fifth Amendment taking claim as untimely). Here, Mobley appear s to argue that the actions of the Postal Service beginning in late 1990 violated due process because he was denied "a letter of charges," an opportunity to review the eviden ce, and an opportunity to respond. Even if Mobley's argument were suppor ted by the evid ence of record—and it is not—his opportunity to challenge the process affo rded him in the years 1990-1992 expired wit h the applicable filing periods, all of wh ich passed more than a decade ago. See, e.g. ,

2006-3218 7Cooper v. Marsh , 807 F.2d 988, 992 (Fed. Cir. 1986) ( noting that a claimant's due process claim would be barred by the applicable statute of limitations). As the Supreme Court noted long ago, "T her e must be an end of litigation some time." Corning v. Troy Iron & Nail F a ctory , 56 U.S. 451, 466 (1853). The time has come for this litigation, now sixteen years in the maki ng, to come its overdue end. III We affirm the judgment of the Board. Each side shall bear its own costs.

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