Patricia A. Irving v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PATRICIA A. IRVING,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3188
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752090637-I-1.
____________________________
Decided: January 23, 2012
____________________________
PATRICIA A. IRVING , of Doyle, California, pro se.
D AVID S. BROOKS , General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN , General Counsel, and KEISHA
D AWN BELL, Deputy General Counsel.
__________________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.

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IRVING v. MSPB 2
PER C URIAM.
Patricia Irving appeals from the final order of the
Merit Systems Protection Board (“the Board”) dismissing
her petition for review and request to reopen a previously
settled Board appeal as untimely and filed without due
diligence. Irving v. Dep’t of the Army, SF-0752-09-0637-I-
1, 116 M.S.P.R. 482 (M.S.P.B., June 24, 2011). Because
the Board correctly held that Irving’s submission was an
untimely petition for review and request to reopen, we
affirm.
BACKGROUND
Irving was removed from her position as a Materials
Handler on April 27, 2009. She appealed that action to
the Board on May 27, 2009. The agency and Irving signed
a settlement agreement on July 28, 2009. That agree-
ment provided, in part: (1) for Irving’s resignation; (2)
that her appeal be dismissed with prejudice; (3) that she
would not seek, apply for, or accept employment at Sierra
Army Depot; and (4) that the agreement was a full, final,
and complete settlement. On July 30, 2009, the adminis-
trative judge (“AJ”) issued an initial decision dismissing
the original appeal as settled, retaining jurisdiction for
enforcement. The initial decision contained a notice to
Irving that the initial decision would become final on
September 3, 2009, unless a petition for review was filed
by that date or the Board reopened the case on its own
motion.
On December 14, 2010, Irving sent the Board a letter
entitled a “Petition for Enforcement” and requesting
“[p]ermission to reopen [her] case.” In addition, she
requested reinstatement “as previously agreed” because
she had obtained a driver’s license. The Clerk of the
Board responded on January 20, 2011 that her submis-
sion appeared to be challenging the settlement agreement

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IRVING v. MSPB 3
and that her filing would be considered a petition for
review of that decision. While initially sent to the wrong
address, the Board resent the January notice on February
2, 2011. The Clerk’s response also noted that Irving’s
petition for review may be found untimely unless she filed
a motion with a sworn statement showing that her peti-
tion was either timely or that good cause existed for the
delay. Irving then filed a motion to waive the September
3, 2009 deadline, arguing that the Board sent the January
2011 acknowledgement order to the wrong address and
that during a July 2009 conference the AJ agreed to
transfer her to a new job once she obtained her driver’s
license. The Board then dismissed Irving’s petition for
review as untimely filed without good cause shown for the
delay and failing to exercise due diligence in reopening
her appeal. Irving then appealed.
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 commit-
ted to the Board’s discretion and this court will not substi-
tute its own judgment for that of the Board.” Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc). To demonstrate on appeal that the Board
abused its discretion in not waiving the filing deadline for
a petition for review or in not reopening an appeal, Peti-
tioner bears a “heavy burden.” Zamot v. Merit Sys. Prot.
Bd., 332 F.3d 1374, 1377-78 (Fed. Cir. 2003).

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IRVING v. MSPB 4
Construing her pleadings liberally, Irving argues that
she filed a petition for enforcement, not a petition to
review or request to reopen. Alternatively, Irving notes
that she did not ask the Board for an extension of time
because she relied on a conference with the AJ that oc-
curred prior to the July 2009 initial decision about the
concerned transfer to another base once she received her
driver’s license. Below, she also argued that her Decem-
ber 2010 petition was untimely because she did not re-
ceive the January 2011 response at the correct address,
but received the response in February 2011.
The government argues that the Board appropriately
construed Irving’s December 14, 2010 submission as a
petition for review and request to reopen her appeal and
determined that this petition and request were untimely.
Specifically, the government notes that Irving’s submis-
sion did not assert a breach of the terms of the settlement
agreement, and the Board was therefore correct to decline
to analyze it as a petition for enforcement. In addition,
the government argues that Irving failed to show good
cause for her delay or due diligence in seeking to reopen
her appeal. We agree with the government that the
Board did not err in finding that Irving’s submission was
a petition for review and a request to reopen untimely
filed without good cause or due diligence.
Although Irving designated her letter as a petition for
enforcement, she did not assert that the agency breached
any of the express terms of the settlement agreement. As
such, she could not be petitioning for an enforcement of
that settlement agreement. Instead, she seeks to enforce
a promise allegedly made by the AJ. In effect, she argues
that the settlement agreement, which does not mention
rehiring or transfer, is an incomplete representation of
the agreement she made. This is more appropriately a
petition for review and a request to reopen her appeal.

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IRVING v. MSPB 5
See Hatcher v. Dep’t of Justice, 76 M.S.P.R. 97, 99 (1997)
(“[A]n attack on the validity of a settlement agreement is
made in the form of a petition for review of the initial
decision, and not in a petition for enforcement.”); Virgil v.
United States Postal Serv., 75 M.S.P.R. 109, 112 (1997)
(noting that an attack on the validity of a settlement
agreement must be made through a petition for review of
the initial decision dismissing the appeal as settled);
Trotta v. United States Postal Serv., 73 M.S.P.R. 6, 9
(1997) (noting that determinations whether a party
breached the settlement agreement are properly matters
to be addressed in a petition for enforcement). As Irving
requested relief outside the terms of the written settle-
ment agreement, the Board was correct in interpreting
her claim as a petition for review and a request to reopen
her appeal.
There is no dispute that Irving filed her petition more
than 1 year and 3 months after the September 3, 2009
deadline. Irving listed two reasons for her delay: (1) that
the January 2011 response to her petition for review was
sent to the wrong address; and (2) that representations by
the AJ prior to the July 2009 initial decision concerning
transferring jobs once she received a drivers license led
her to not request an extension of time. While the Board
may waive a time limit for good cause, the Board’s deter-
mination that Irving failed to show such good cause was
supported by substantial evidence.
Irving’s reasons for the delay are immaterial to her
failure to file a petition for review. First, the receipt of
the January 2011 response is not connected to the filing of
her earlier December 2010 petition. Second, with regard
to the promise by the AJ, the settlement agreement does
not mention any future employment, transfer, or driver’s
license requirement. On the contrary, it states that she
would resign, that her appeal would be dismissed with

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IRVING v. MSPB 6
prejudice, and that it was a full, final, and complete
settlement. See Rumsfeld v. Freedom NY, Inc., 329 F.3d
1320, 1328 (Fed. Cir. 2003) (quoting McAbee Constr., Inc.
v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996))
(Petitioner “carries an extremely heavy burden in over-
coming this attestation to the document’s finality and
completeness.”). Irving has not shown good cause why
she did not file a timely petition for review or request an
extension of time for over a year. If Irving believed the
settlement agreement was incomplete, she was obligated
to file her petition for review on or before September 3,
2009. She did not do so. Therefore, we conclude that the
Board did not abuse its discretion in dismissing her
petition. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.

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