NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3176 

JACENTA J. GRIFFIN, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Sarah J. Martoccia, Law Offices of Sarah J. Martoccia, of Torrance, California, 

for petitioner. 

Michael A. Carney, General Attorney, Office of the General Counsel, Merit 

Systems Protection Board, of Washington, DC, for respondent. With him on the brief 

were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General 

Counsel. Of counsel was Thomas N. Auble. 

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NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit

2007-3176 

JACENTA J. GRIFFIN, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Petition for review of the Merit Systems Protection Board in SF0731030528-I-3. 

___________________________ 

DECIDED: February 4, 2008 

___________________________ 

Before BRYSON, CLEVENGER, and LINN, Circuit Judges. 

PER CURIAM. 

DECISION 

 Jacenta J. Griffin petitions for review of a decision of the Merit Systems 

Protection Board dismissing her petition for review of an order accepting a settlement 

agreement as untimely and denying her related petition for enforcement of the 

settlement agreement. We affirm. 
BACKGROUND 

In June 2003, the Office of Personnel Management (“OPM”) made a negative 

suitability determination with regard to Ms. Griffin and barred her from competition for or 

appointment to any position in the competitive federal service until March 27, 2005. Ms. 

Griffin appealed the negative determination to the Merit Systems Protection Board. 

While the appeal was pending, the parties reached a settlement. As part of the 

settlement, Ms. Griffin withdrew her appeal with prejudice, while OPM agreed to reduce 

the period of Ms. Griffin’s debarment so that it would end on September 27, 2004. OPM 

also agreed that the reasons specified in its decision letter would “not be used as a 

basis for any future OPM suitability action unless evidence of conduct similar to the 

conduct described in the Decision Letter is disclosed in any future suitability 

investigation.” The settlement was entered into the Board’s record for enforcement 

purposes. 

 Ms. Griffin subsequently applied for but was denied a position as a correctional 

officer with the federal Bureau of Prisons. Alleging that she was denied the position 

because of “issues from this case,” she filed a petition with the Board seeking 

enforcement of the settlement agreement. OPM agued, inter alia, that even if the 

Bureau of Prisons had made an adverse suitability determination with respect to Ms. 

Griffin, she would have no remedy under the settlement agreement, because the 

settlement agreement did not cover suitability determinations by agencies other than 

OPM. Ms. Griffin responded that she would not have agreed to the settlement 

agreement if she had known that it would not prevent other agencies from considering 

2007-3176 2 
the circumstances underlying her OPM unsuitability determination when evaluating her 

applications for employment. 

The administrative judge who was assigned to the enforcement action found that 

at the time that the settlement agreement was negotiated, Ms. Griffin and her attorney 

had sought to revise the draft agreement in two ways. First, they sought to add 

language that would nullify any effects of the negative suitability determination on Ms. 

Griffin after the debarment period ended. The language that Ms. Griffin proposed 

provided in part that in connection with any future applications for federal employment, 

“no issues present in this case can be brought forth.” Second, they sought to add 

language that would make the agreement applicable to suitability determinations made 

by other federal agencies in addition to OPM. OPM’s representative, however, declined 

to accept either of those proposed changes, and the proposed changes were therefore 

not added to the draft agreement. Ms. Griffin accepted the settlement agreement even 

without the additions she and her attorney had proposed. 

Based on those facts, the administrative judge found that it was clear Ms. Griffin 

and her attorney were aware that federal agencies other than OPM may make suitability 

determinations. The administrative judge concluded that the mere fact that OPM had 

refused to agree to the changes that Ms. Griffin and her lawyer proposed did not 

suggest that the agreement was tainted by fraud or mutual mistake. 

The administrative judge found that Ms. Griffin had not shown that any other 

federal agency had made a negative suitability determination about her, but that even if 

she had, such an action would not constitute a breach of the settlement agreement. 

The administrative judge further found that Ms. Griffin had failed to show that any 

2007-3176 3 
federal agency had failed to employ her because of the negative suitability 

determination made by OPM. The administrative judge found that any such conduct 

would not constitute a breach of the agreement in any event, since OPM was not 

prohibited from informing other agencies about the terms of its own previous 

unsuitability determination. Accordingly, the administrative judge ruled that Ms. Griffin 

had failed to prove a breach of the settlement agreement. 

To the extent that Ms. Griffin’s petition was viewed as alleging that the settlement 

agreement was invalid from the outset, the administrative judge treated the petition for 

enforcement as a petition for review by the full Board and therefore forwarded the case 

to the full Board. The petition for review was given the effective date of the petition for 

enforcement filed by Ms. Griffin, May 4, 2006. 

Because the initial decision that ratified the settlement agreement between Ms. 

Griffin and OPM became final on August 11, 2004, the effective filing date for the 

petition for review rendered the petition approximately 20 months late. The Board 

therefore requested that the parties file supplemental submissions addressing the 

timeliness issue, including any explanation as to why the untimeliness of the petition 

should be excused. The Board provided Ms. Griffin with forms to help her in doing so. 

Ms. Griffin, however, did not respond with any reason why the delay should be excused. 

The Board found no good cause for the 20-month delay and denied her petition as 

untimely filed. 

In this court, Ms. Griffin filed her initial brief pro se, but later retained counsel who 

filed a reply brief on her behalf. The reply brief fleshes out some of Ms. Griffin’s 

arguments in more detail than her initial brief, and it raises certain new issues. Because 

2007-3176 4 
Ms. Griffin was originally proceeding pro se, we have elected to entertain all the 

arguments made in Ms. Griffin’s reply brief as if they had been timely raised in her initial 

brief. 

DISCUSSION 

Under 5 C.F.R. § 1201.114(f), an untimely petition for review “must be 

accompanied by a motion that shows good cause for the untimely filing, unless the 

Board has specifically granted an extension of time.” To establish good cause for a 

filing delay, an appellant must show that “diligence or ordinary prudence ha[s] been 

exercised.” Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982). 

Ms. Griffin did not respond to the Board’s request for a supplemental submission 

explaining the reason for the delay in filing the document that the Board treated as a 

petition for review. In her initial brief before this court, Ms. Griffin asserted that she had 

had difficulty finding an attorney to represent her in this case (although she is now 

represented by counsel). Ms. Griffin, however, did not make that argument before the 

Board, and it does not set forth a sufficient excuse in any event. The Board has 

consistently held that inability to find legal counsel does not excuse delay. See, e.g., 

Goldtooth v. Dep’t of the Interior, 69 M.S.P.R. 662, 663-64 (1996), aff'd, 106 F.3d 427 

(Fed. Cir. 1997) (table); Block v. Def. Logistics Agency, 40 M.S.P.R. 198, 199-200, aff'd, 

889 F.2d 1099 (Fed. Cir. 1989) (table). In her reply brief in this court, Ms. Griffin has 

directly addressed the issue of delay for the first time. In that brief, she argues that she 

could not have known of her need to file a petition for review until the BOP refused to 

hire her in a letter dated April 28, 2006. She filed her constructive petition for review 

one week after that date. 

2007-3176 5 
Although the Board predicated its decision as to the constructive petition for 

review on untimeliness, the administrative judge addressed the merits of Ms. Griffin’s 

underlying claim in the course of his opinion dealing with the enforcement petition. 

Therefore, the issue of the timeliness of the constructive petition for review is not critical, 

as the merits of her challenge to the validity of the settlement agreement are presented 

in the enforcement proceeding. Like the administrative judge, we address the merits of 

her challenge to the validity of the settlement agreement in the context of that 

proceeding, and we conclude that she has not shown that the agreement is invalid or 

that it was breached. 

Ms. Griffin’s argument regarding the validity of the settlement agreement is 

predicated on her claim that that she believed she would never have to reveal the 

information underlying OPM’s suitability determination to any other federal agency to 

which she applied for employment. She contends that this court should reform the 

settlement agreement to add a paragraph stating that she does “not need to disclose 

any information contained in the Decision Letter and investigation summary, such as the 

fact that she had been terminated from previous employment, when applying for any 

subsequent federal agency positions.” Ms. Griffin argues that that was the initial 

intention of the parties in forming the settlement agreement and that the contract 

therefore should be reformed based on the doctrine of mutual mistake. 

The administrative judge found that Ms. Griffin and the attorney who represented 

her at the time the settlement agreement was drafted could not have believed that the 

settlement agreement was as broad as she now contends. As noted above, Ms. Griffin 

and her attorney had asked for modifications of the settlement agreement that would 

2007-3176 6 
have prohibited reference to any of the “issues present in [the suitability] case,” and 

would have prohibited any other federal agency from making a suitability determination 

based on the information in OPM’s decision letter. OPM refused to add that language 

to the agreement, yet Ms. Griffin accepted the settlement agreement nonetheless. In 

light of those circumstances, the administrative judge found that Ms. Griffin must have 

understood that nothing in the settlement agreement would bar other federal agencies 

from having access to the information about her termination. Moreover, as the 

administrative judge explained, the settlement agreement bound only OPM; it did not 

bar other agencies from making adverse suitability determinations or otherwise 

deciding, for whatever reasons, not to hire her. 

The administrative judge’s findings are supported by substantial evidence, and in 

light of those findings, we cannot conclude that the contract should be reformed based 

on mutual mistake. The reformation that Ms. Griffin seeks would effectively amend the 

settlement agreement to include the very provisions that Ms. Griffin and her lawyer 

proposed but that OPM declined to accept. Under these circumstances, the 

administrative judge justifiably concluded that Ms. Griffin could not have believed that 

the agreement provided her the benefits that she now asserts she thought it did. 

Because the settlement agreement did not bar OPM from disclosing the circumstances 

underlying its prior unsuitability determination to other agencies and did not bar other 

federal agencies from making their own suitability determinations, the administrative 

judge properly denied the petition for enforcement. 

Ms. Griffin further asserts that as a matter of law the settlement agreement 

applies not only to OPM but to all other federal agencies as well. She cites 5 C.F.R. 

2007-3176 7 
2007-3176 8 

§ 731.203(b), which states that “[a]n applicant's eligibility may be cancelled, an applicant 

may be denied employment, or an appointee may be removed when OPM or an agency 

exercising delegated authority under this part finds that the applicant or appointee is 

unsuitable for the reasons cited in [section] 731.202 . . . .” Ms. Griffin contends that she 

“would have no way of knowing that OPM did not intend to exercise its authority to 

make suitability determinations with respect to her for all federal positions.” This 

argument fails because, as the administrative judge noted, the background of the 

parties’ negotiations over the settlement agreement makes clear that Ms. Griffin and her 

attorney were aware of the narrow scope of the settlement agreement. In the course of 

negotiations, the parties specifically adverted to the fact that other federal agencies 

conduct suitability determinations, and Ms. Griffin’s acceptance of the agreement 

notwithstanding OPM’s refusal to agree to bind other federal agencies undercuts her 

claim that she had “no way of knowing” that OPM would not make all suitability 

determinations “with respect to her for all federal positions.” 

In any event, it is not clear that the BOP made a suitability determination. After 

Ms. Griffin had passed the initial screening process, her application was forwarded to 

the warden for consideration. She was then denied the position. Whether the warden 

decided not to hire her because of information regarding her prior unsuitability 

determination or for some other reason is not revealed by the record. But in any event, 

there is nothing in the settlement agreement or in the regulations governing suitability 

determinations that prevented the warden from making a decision not to hire her. 

For the foregoing reasons, we uphold the Board’s decision.