NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

LAJUANNA R. SCOTT,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2023-1134

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-0752-22-0408-I-1.

______________________ 

Decided: May 9, 2023

______________________ 

LAJUANNA R. SCOTT, La Grange, TX, pro se.

 JEFFREY GAUGER, Office of the General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by ALLISON JANE 

BOYLE, KATHERINE MICHELLE SMITH. 

______________________ 

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2 SCOTT v. MSPB

Before MOORE, Chief Judge, MAYER and HUGHES, Circuit 

Judges.

PER CURIAM. 

LaJuanna Scott appeals a decision of the Merit Systems Protection Board (Board or MSPB) dismissing her appeal as untimely. For the following reasons, we affirm. 

BACKGROUND

Ms. Scott was previously employed by the United 

States Postal Service (USPS) as a full-time Regular City 

Carrier in Houston, Texas. S. Appx. 23. By letter dated 

May 24, 2021, the USPS proposed Ms. Scott’s removal 

based on charges of failure to follow FMLA leave requesting procedures, failure to follow her supervisor’s directions, 

and unauthorized absences. S. Appx. 2, 17–21. Ms. Scott 

did not respond. S. Appx. 2. On August 30, 2021, the USPS 

informed Ms. Scott by express, priority, and first-class mail 

of its decision to remove her effective September 3, 2021. 

S. Appx. 17–21. The August 30th letter notified Ms. Scott 

she could appeal the USPS’ decision to the Board and provided her with a copy of the appropriate appeal form. 

S. Appx. 19. It also informed her that if she wished to appeal, she must do so “within 30 days after the date [she] 

received this notice or the effective date of this decision, 

whichever is later” and that if she missed the deadline 

without good cause her appeal would be dismissed. 

S. Appx. 19.

Ms. Scott did not attempt to appeal her removal until 

May 31, 2022, when she submitted a notice of appeal by 

email to the Clerk of the Board. S. Appx. 30. On June 1, 

2022, the Clerk responded that appeals cannot be filed by 

email and informed Ms. Scott she should instead use the efiling system or submit her appeal by regular mail. 

S. Appx. 30. Ms. Scott then filed a notice of appeal by regular mail on August 17, 2022. By order of August 23, 2022, 

an administrative judge (AJ) of the Board informed Ms. 

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SCOTT v. MSPB 3

Scott there was a question as to whether her appeal was 

timely filed and instructed her to provide evidence either 

that it was timely or that good cause existed for any delay. 

S. Appx. 32–36 (Show Cause Order). Ms. Scott did not respond.

On September 28, 2022, the AJ dismissed Ms. Scott’s 

appeal as untimely. The AJ found there was sufficient evidence to support that Ms. Scott did not receive the USPS’ 

August 30, 2021 notice of removal, but noted Ms. Scott conceded she had received the removal letter by May 18, 2022. 

S. Appx. 4. As such, the deadline for timely appeal was no 

later than June 17, 2022, sixty-one days before her August 

17th filing. S. Appx. 4. The AJ then considered whether 

Ms. Scott’s delay was excusable for good cause. S. Appx. 4–

6. The AJ noted that while Ms. Scott had attempted to appeal her removal on May 31, 2022—within the 30-day 

deadline—that appeal was ineffectual and she had provided no explanation why she did not refile until August 

17, despite the Clerk’s explicit instructions on June 1 about 

how to do so. S. Appx. 5–6. The AJ also considered Ms. 

Scott’s allegations that she was suffering from a back injury while simultaneously caring for her mother but found 

Ms. Scott had failed to establish any causal link between 

those unfortunate circumstances and her delay or to provide corroborating medical evidence. S. Appx. 6. Because 

Ms. Scott did not otherwise demonstrate good cause for her 

delay, the AJ dismissed. Id. Ms. Scott appeals. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. 

§ 7703(b)(1)(A). 

DISCUSSION

Pursuant to 5 C.F.R. § 1201.22(b)(1), “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.” “[W]hether the regulatory time limit for an appeal 

should be waived based upon a showing of good cause is a 

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4 SCOTT v. MSPB

matter committed to the Board’s discretion and this court 

will not substitute its own judgment for that of the Board.” 

Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. 

Cir. 1992) (en banc). We will reverse the Board’s dismissal 

for failure to timely appeal “only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with the law.” Id. (citing 5 U.S.C. § 7703(c)). Ms. Scott bore 

the burden to demonstrate that her failure to timely appeal 

was excused by good cause. Phillips v. U.S. Postal Serv., 

695 F.2d 1389, 1390 (Fed. Cir. 1982).

The AJ did not abuse his discretion in determining Ms. 

Scott failed to meet her burden to demonstrate good cause 

for her delay. Before the Board, Ms. Scott did not dispute 

that she received the Clerk’s June 1 email explaining that 

appeals must be filed through the MSPB’s e-filing system 

or through regular mail. S. Appx. 5. Nor did Ms. Scott offer 

any explanation as to why she delayed another six weeks

to act on that information. Id. Further, because Ms. Scott 

did not respond to the AJ’s Show Cause Order to produce 

evidence, the AJ was left only to consider Ms. Scott’s unsupported allegations regarding her delay. See Mendoza, 

966 F.2d at 653 (“A petitioner who ignores an order of the 

Administrative Judge does so at his or her own peril.”). 

The AJ considered Ms. Scott’s allegations regarding her 

medical and family condition, as well as Ms. Scott’s pro se 

status, but appropriately found these uncorroborated allegations did not justify waiving a sixty-one-day delay. See

Ford-Clifton v. Dep’t of Veterans Affs., 661 F.3d 655, 659 

(Fed. Cir. 2011) (“[W]hen petitioners allege delay for medical reasons, they must affirmatively identify medical evidence that addresses the entire period of delay and explain 

how the illness prevented a timely filing.”). In the absence 

of any corroborating evidence demonstrating Ms. Scott’s 

delay was excusable, the AJ did not abuse his discretion in 

declining to waive the filing deadline.

On appeal, Ms. Scott argues she did not check her 

email for several weeks after attempting to submit her 

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SCOTT v. MSPB 5

appeal, and therefore missed the Clerk’s June 1 email, because she was depressed and was expecting a response by 

mail.1 Appellant’s Informal Op. Br. 2. As noted, it does not 

appear Ms. Scott raised this argument to the Board. See 

S. Appx. 2, 5–6 (noting Ms. Scott did not respond to the 

Show Cause Order and did not dispute her receipt of the 

June 1 email). But even if she had, it would not demonstrate the AJ’s decision was an abuse of discretion. Allegations of physical or mental illness must be substantiated

“by supporting documentation or other evidence.” FordClifton, 661 F.3d at 659 (quoting 5 C.F.R. § 1201.114(f)(2)). 

Here, Ms. Scott has not submitted any medical records indicating she suffers from depression or explained with any 

particularity how her depression prevented her from 

timely filing her appeal or requesting an extension. Similarly, Ms. Scott has not produced any evidence indicating 

her expectation of a paper mail response was due to misinformation from the USPS or MSPB, and her failure to otherwise check her email for several weeks does not excuse 

her late response. Mendoza, 966 F.2d at 653 (noting excusable delay requires a petitioner to exercise “diligence or 

1 Ms. Scott also alleges she was improperly removed 

because of discrimination based on her back injuries. 

S. Appx. 38; Appellant’s Informal Reply Br. 1. Because Ms. 

Scott did not raise a discrimination claim to the Board, see 

S. Appx. 22, she cannot raise it on appeal. Synan v. Merit 

Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985) (“Petitioner cannot raise before this court an issue which could 

have been raised below but which was not.”). Further, to 

the extent Ms. Scott alleges her removal was discriminatory, we lack jurisdiction to review the Board’s decision in 

the first instance. Kloeckner v. Solis, 568 U.S. 41, 56 (2012) 

(“A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute . . . should seek judicial review in district court, not in 

the Federal Circuit.”).

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6 SCOTT v. MSPB

ordinary prudence”). As such, Ms. Scott cannot meet the 

heavy burden necessary to set aside the Board’s decision 

on appeal.

CONCLUSION

We have considered Ms. Scott’s other arguments and 

find them unpersuasive. For the reasons given, we affirm 

the Board’s decision dismissing Ms. Scott’s appeal as untimely.

AFFIRMED

COSTS

No costs.

 

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