Case: 23-1248 Document: 26 Page: 1 Filed: 08/11/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
EVELYN A. ANDERSON, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________
2023-1248 ______________________
Petition for review of the Merit Systems Protection Board in No. DA-0752-13-0106-I-1. ______________________
Decided: August 11, 2023 ______________________
EVELYN A. ANDERSON, Grand Prairie, TX, pro se.
ALLISON JANE BOYLE, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. ______________________
Before PROST, WALLACH, and CHEN, Circuit Judges. PER CURIAM.
Case: 23-1248 Document: 26 Page: 2 Filed: 08/11/2023 2 ANDERSON v. MSPB
Evelyn Anderson appeals a final order of the Merit Sys- tems Protection Board (Board) dismissing her petition as untimely. Anderson v. Dep’t of the Navy, No. DA-0752-13- 0106-I-1, 2022 WL 16640824, at *1 (M.S.P.B. Nov. 2, 2022) (Final Order). Because the Board did not abuse its discre- tion in considering the petition to be untimely filed, we af- firm. BACKGROUND On October 31, 2012, the Department of the Navy (Navy) removed Ms. Anderson from her position as a com- munications clerk for making an inappropriate comment in the workplace. Anderson v. Navy, No. DA-0752-13-0106-I- 1, 2013 WL 5917683 (Mar. 28, 2013) (Initial Decision). Ms. Anderson appealed the Navy’s removal to the Board, and on March 28, 2013, the Board issued an initial decision affirming the removal. Id. The Board indicated that this initial removal decision would become final unless Ms. An- derson were to file a petition for review by May 2, 2013. Final Order, 2022 WL 16640824, at *1. Over four years later, on April 11, 2017, Ms. Anderson petitioned the Board for review of its initial decision. Id. The Board notified Ms. Anderson that her petition was un- timely filed and requested her to show good cause for the delay. Id. Ms. Anderson’s motion explained that her inex- perience with the Board’s process, her pro se status, and her mounting personal difficulties—including the loss of family members, the loss of a close friend, and a compli- cated divorce—contributed to her delay in filing the peti- tion. Id. In its final order responding to Ms. Anderson’s petition and motion, the Board dismissed the petition as untimely filed without good cause. Id. Ms. Anderson timely ap- pealed this final order. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
Case: 23-1248 Document: 26 Page: 3 Filed: 08/11/2023 ANDERSON v. MSPB 3
DISCUSSION The Board will waive the time limit for filing a petition upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g). To show good cause, the petitioner must es- tablish that she “exercised diligence or ordinary prudence under the particular circumstances of the case.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388 (Fed. Cir. 1994) (citation omitted). “The [Board] has broad discretion to control its own docket and we will not substitute our judg- ment for that of the [B]oard in this regard.” Id. Indeed, we must affirm the Board’s decision unless we find it “(1) arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021). We do not believe the Board abused its discretion in finding Ms. Anderson’s petition untimely filed without good cause. There is no dispute that Ms. Anderson’s peti- tion was untimely filed. And while we acknowledge Ms. Anderson’s personal difficulties leading up to the Board’s initial decision, her pro se status, and her inexpe- rience with the Board’s procedures, the Board’s final order considered each of these factors and concluded that they did not amount to a showing of good cause because (1) the initial decision contained “clear and unambiguous” and “straightforward instructions” for filing a petition, (2) her personal difficulties, while unfortunate, did not constitute good cause, and (3) Ms. Anderson had not explained why her circumstances resulted in a four-year delay between the initial decision and her petition for review. Final Or- der, 2022 WL 16640824, at *1–2. We thus find no abuse of discretion in the Board’s dismissal of the petition. Ms. Anderson does not credibly challenge the Board’s dismissal in its final order. Instead, she focuses her appeal
Case: 23-1248 Document: 26 Page: 4 Filed: 08/11/2023 4 ANDERSON v. MSPB
arguments on challenging the merits of the Board’s initial removal decision, alleging the Board committed both fac- tual and legal error in affirming her removal from the Navy. Appellant’s Informal Br. at 2–3; Appellant’s Infor- mal Reply at 1–2. But to have timely appealed this initial decision to this court, Ms. Anderson should have filed the appeal within 60 days after the initial decision became fi- nal on May 2, 2013. 5 U.S.C. § 7703(b)(1). Because Ms. Anderson did not timely appeal the Board’s decision, her attacks on the merits of that decision lie beyond the scope of the present appeal. See Olivares, 17 F.3d at 388 (“[Appellant] did not timely appeal to this court the final decision of the [B]oard that affirmed the [agency] deci- sion. . . . Accordingly, we may not review that decision and it remains the final decision of the [B]oard.”). CONCLUSION We have considered Ms. Anderson’s remaining argu- ments and find them unpersuasive. For the reasons above, we affirm the Board’s dismissal of Ms. Anderson’s petition. AFFIRMED COSTS No costs.