Annette Rivera v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANNETTE RIVERA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3019
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT0752110696-I-1.
____________________________
Decided: May 11, 2012
____________________________
ANNETTE RIVERA , of Atlanta, Georgia, pro se.
SARA B. REARDEN , Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC. With him on the brief were JAMES M. EISENMANN ,
General Counsel, and KEISHA D AWN BELL, Deputy Gen-
eral Counsel.
__________________________
Before LOURIE, BRYSON , and O’MALLEY, Circuit Judges.

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RIVERA v. MSPB 2
PER C URIAM.
Annette Rivera appeals from the final decision of the
Merit Systems Protection Board (“the Board”) dismissing
her appeal as untimely filed. Rivera v. Dep’t of the Treas-
ury, No. AT-0752-11-0696-I-1 (M.S.P.B. Jan. 17, 2012).
Because the Board correctly dismissed her appeal as
untimely filed without good cause for the delay, we affirm.
BACKGROUND
Rivera was removed from her position as a Contact
Representative working for the Internal Revenue Service
in Atlanta, Georgia, effective on or about August 7, 2006.
At the time of her removal, she was notified of her appeal
rights to the Board, including the time for her to file an
appeal and the address where that appeal should be filed.
She appealed to the Board approximately four years later.
The administrative judge (“AJ”) issued an Order on
Timeliness on August 24, 2011, determining that her
appeal was late. The AJ requested that Rivera establish
within 10 calendar days that either her appeal was timely
or there was good cause for the delay. The AJ also stated
that “the record on the timeliness issue will close on the
date the appellant’s response is due,” and the AJ “will not
accept any more evidence or argument on that issue that
is filed after that date unless the party submitting it
shows it was not readily available prior to the close of the
record.” RA 31–32. Rivera informed the AJ prior to the
expiration of the 10-day window that she did not have
anything additional to add and would not be filing a
response. Having received no response from Rivera, the
AJ issued an initial decision on September 8, 2011.
Rivera, contrary to her earlier representations, then filed
her response to the Order on Timeliness after the AJ’s
initial decision was issued, and it was not considered.

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RIVERA v. MSPB 3
The AJ determined that Rivera’s appeal to the board
was four years after her removal, outside the 30-day filing
deadline. The AJ considered that Rivera suffered from
depression and anxiety, but found that the medical condi-
tions alone were insufficient to establish good cause for
the delay, especially in light of Rivera’s filings relating to
other proceedings during the four-year period. As her
filing was untimely without good cause shown, the AJ
dismissed her appeal. Rivera petitioned the full Board for
review. While that petition was pending, she filed her
petition for review at this court and withdrew her petition
pending before the Board. The Board issued a final order
dismissing Rivera’s petition for review as withdrawn with
prejudice to refiling. The AJ’s decision became the final
decision of the Board, and her appeal to this court fol-
lowed.
D ISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise 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); see Briggs v. Merit Sys.
Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
“[W]hether the regulatory time limit for an appeal should
be waived based upon a showing of good cause is a matter
committed to the Board’s discretion and this court will not
substitute its own judgment for that of the Board.” Men-
doza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir.
1992) (en banc).
Rivera argues that the Board failed to consider all her
medical conditions—including depression, anxiety, pain,
and other disabilities—as good cause for the delay in

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RIVERA v. MSPB 4
filing, and she alleges that, while proceeding pro se, she
was misled on the proper procedures to use for appeal
(i.e., that she was given the wrong forms, docket numbers,
and filing address).
The government responds that substantial evidence
supports the Board’s decision not to waive the filing
deadline. The government notes that Rivera was pro-
vided ample opportunity to submit evidence and argu-
ment to show good cause for the four-year delay in filing
her appeal, but she represented to the AJ she had nothing
more to add and would not be submitting a response. The
government adds that the response she eventually filed
was outside the 10-day window set by the AJ to respond.
Thus, the government argues that the AJ properly con-
cluded that there was no showing that Rivera had good
cause for the delay or that her medical conditions (depres-
sion and anxiety) prevented her from filing an appeal in a
timely manner, and hence properly dismissed the appeal.
We agree with the government that the Board did not
err in finding that Rivera’s submission was untimely filed
without good cause or due diligence. Rivera was removed
from her position, effective August 7, 2006. Despite being
provided with notice of her appeal rights, contact informa-
tion regarding filing an appeal, and the relevant time
deadlines at the time of her removal, her appeal went
unfiled for approximately four years. Even though Rivera
was proceeding pro se, Rivera did not show that her
illness (which the AJ acknowledged) or any other reason
rendered her unable to file within the time required by
the Board’s regulations. On the contrary, the evidence
shows that within this time frame she participated in
other proceedings, requesting and appearing for hearings
to testify on her own behalf, despite her various medical
conditions. The Board properly did not consider Rivera’s
response to the Order on Timeliness, as it was likewise

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RIVERA v. MSPB 5
untimely filed. See Bledsoe v. Merit Sys. Prot. Bd., 659
F.3d 1097, 1105 (Fed. Cir. 2011) (noting that the AJ is
divested of jurisdiction after the initial order dismissing
for lack of jurisdiction, specifically stating that after the
initial decision an AJ cannot consider untimely evidence
submissions).
We have considered Rivera’s remaining arguments
and do not find them persuasive. While the Board may
waive a time limit for good cause, the Board’s determina-
tion that Rivera failed to show such good cause was
supported by substantial evidence. We therefore conclude
that the Board did not err in dismissing her appeal as
untimely filed. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.

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