Laura A. Limbrick v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAURA A. LIMBRICK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1922
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-21-0293-I-1.
______________________
Decided: November 9, 2023
______________________
J ENNIFER D UKE I SAACS , Melville Johnson, P.C., At-
lanta, GA, argued for petitioner.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before L OURIE, REYNA , and CHEN, Circuit Judges.
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LIMBRICK v. MSPB 2
P ER CURIAM .
Laura A. Limbrick appeals a final order of the Merit
Systems Protection Board (Board) that denied her petition
for review and affirmed the Board’s initial decision in Lim-
brick v. Department of the Treasury, No. DA-0752-21-0293-
I-1, 2021 WL 3146401 (M.S.P.B. July 19, 2021) (Initial De-
cision), which dismissed Ms. Limbrick’s appeal to the
Board as being untimely filed without good cause. Lim-
brick v. Dep’t of the Treasury, No. DA-0752-21-0293-I-1,
2022 WL 1310834, at *1 (M.S.P.B. Apr. 27, 2022) (Final Or-
der). Because we do not believe the Board abused its dis-
cretion in considering Ms. Limbrick’s appeal to the Board
to be untimely filed without good cause, we affirm.
BACKGROUND
On January 30, 2020, the Internal Revenue Service
(IRS) removed Ms. Limbrick from her position as a revenue
officer. Initial Decision, 2021 WL 3146401. During an in-
person meeting a day before her removal that Ms. Limbrick
concedes to have attended, the IRS served its removal de-
cision to Ms. Limbrick. Id. That decision informed
Ms. Limbrick of her right to appeal to the Board and indi-
cated that she must file an appeal no later than 30 calendar
days after receiving the decision. J.A. 29–30.
Ms. Limbrick filed her appeal to the Board on June 7,
2021, 15 months after the deadline. Final Order, 2022 WL
1310834, at *2 & n.2; Initial Decision, 2021 WL 3146401.
In its initial decision, the Board determined that Ms. Lim-
brick untimely filed her appeal and failed to show good
cause for waiving the filing deadline. Initial Decision, 2021
WL 3146401. In reaching this determination, the Board
considered (1) the almost year-and-a-half delay in
Ms. Limbrick’s filing, (2) Ms. Limbrick’s pro se status,
(3) Ms. Limbrick’s displacement from her permanent resi-
dence from June 2019 to January 2021, (4) Ms. Limbrick’s
concession that she was able to manage complex tasks in
her life while she was displaced, (5) Ms. Limbrick’s
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LIMBRICK v. MSPB 3
acknowledgment that she received the IRS’s removal deci-
sion, (6) Ms. Limbrick’s representation that she was con-
fused about the contents of the removal decision, and
(7) the hospitalizations of Ms. Limbrick’s daughter in Feb-
ruary 2021 and April 2021. Id. Weighing these factors, the
Board concluded that Ms. Limbrick failed to establish good
cause for her delay in filing the appeal. Id.
Following the Board’s initial decision, Ms. Limbrick
submitted a petition for review by the full Board. Final
Order, 2022 WL 1310834, at *1. In its final order, the
Board denied the petition and affirmed the Board’s initial
decision. Id. Ms. Limbrick timely appealed this final order
to us. We have jurisdiction pursuant to 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
“If a party does not submit an appeal [to the MSPB]
within the time set by statute, regulation, or order of a
[Board] judge, it will be dismissed as untimely filed unless
a good reason for the delay is shown.” Kerr v. Merit Sys.
Prot. Bd., 908 F.3d 1307, 1311 (Fed. Cir. 2018) (alterations
in original) (quoting 5 C.F.R. § 1201.22(c)). “The appellant
bears the burden of establishing ‘good cause’ for the delay.”
Id. “To establish good cause for a filing delay, an appellant
must show that the delay was excusable under the circum-
stances and that the appellant exercised due diligence in
attempting to meet the filing deadline.” Herring v. Merit
Sys. Prot. Bd., 778 F.3d 1011, 1017 (Fed. Cir. 2015) (inter-
nal quotation marks omitted). “The decision to waive the
time limit to appeal to the Board is committed to the dis-
cretion of the Board, and is reversed only for abuse of that
discretion.” Id. at 1013.
We do not believe the Board abused its discretion in
finding Ms. Limbrick’s petition to be untimely filed without
good cause. The Board found that “[m]ost significantly,
[Ms. Limbrick’s] appeal [was] late by nearly a year and a
half as opposed to a few days.” Initial Decision, 2021 WL
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LIMBRICK v. MSPB 4
3146401. The Board then considered the personal circum-
stances raised by Ms. Limbrick and found that they ulti-
mately did not amount to good cause. Id.
Ms. Limbrick’s arguments on appeal fail to establish
an abuse of discretion. Ms. Limbrick repeats several argu-
ments that she presented to the Board. For example,
Ms. Limbrick contends that (1) her displacement from her
home was a circumstance beyond her control that nega-
tively impacted her ability to work and deprived her of ac-
cess to her medical assistive technology, (2) when she was
removed, she did not receive Standard Form 50, did not
have the opportunity to ask questions, did not have a clear
understanding of the removal process, and did not realize
that she had an appeal deadline that ran from the date of
her removal, and (3) her daughter’s hospitalizations in
February 2021 and in April 2021 further prevented her
from timely filing her appeal. The Board, however, consid-
ered each of these arguments and their underlying facts
and concluded that they did not establish good cause. Ini-
tial Decision, 2021 WL 3146401. Ms. Limbrick does not
identify any specific factor that the MSPB failed to consider
but should have considered. See Herring, 778 F.3d at
1018–19 (reversing the Board’s determination of no good
cause because the Board failed to consider a factor that it
had “previously treated as significant”). Nor does Ms. Lim-
brick allege that the Board had a mistaken understanding
of the facts. While we are sympathetic to Ms. Limbrick’s
personal circumstances, we are unpersuaded that the
Board abused its discretion in concluding that no good
cause existed to excuse Ms. Limbrick’s significant delay in
filing her appeal to the Board.
Ms. Limbrick further contends that the IRS never al-
leged that it experienced any prejudice due to the delay.
But Ms. Limbrick “has the burden of initially showing that
there was good cause for the delay,” and only if she carried
that burden was the IRS “required to submit evidence that
the untimely appeal would prejudice it.” Womack v. Merit
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LIMBRICK v. MSPB 5
Sys. Prot. Bd., 798 F.2d 453, 456 (Fed. Cir. 1986). Because
Ms. Limbrick “did not show good cause for filing an un-
timely appeal, the argument that the agency would not be
prejudiced by a waiver is irrelevant.” Id. We conclude that
Ms. Limbrick has failed to establish that the Board abused
its discretion.
CONCLUSION
We have considered Ms. Limbrick’s remaining argu-
ments and find them unpersuasive. For the reasons above,
we affirm the Board’s dismissal of Ms. Limbrick’s petition
as untimely filed without good cause.
AFFIRMED
COSTS
No costs.
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