Pamela Joan Christian v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA JOAN CHRISTIAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1912
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-15-0186-I-1.
______________________
Decided: September 9, 2016
______________________
P AMELA J OAN CHRISTIAN, Satellite Beach, FL, pro se.
S ARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
______________________
Before P ROST , Chief Judge, N EWMAN, and D YK, Circuit
Judges.
P ER CURIAM .

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CHRISTIAN v. MSPB 2
Dr. Pamela J. Christian petitions for review of a deci-
sion of the Merit Systems Protection Board dismissing her
appeal of her indefinite suspension by the Department of
the Navy (“Navy” or “agency”) as untimely. We affirm.
BACKGROUND
Dr. Christian worked as a scientist for the Navy. Her
position required her to maintain a security clearance to
have access to classified material. On April 30, 2012, Dr.
Christian tested positive for drug use. The Navy suspend-
ed Dr. Christian’s access to classified material pending
determination of her security clearance by the Navy’s
Central Adjudication Facility (“DONCAF”). Because Dr.
Christian was no longer eligible for her position by virtue
of her access suspension, the Navy proposed her indefinite
suspension from duty and pay. The Navy issued its final
decision indefinitely suspending Dr. Christian on July 2,
2012, effective July 9, 2012.
DONCAF issued a final decision revoking her clear-
ance and assignment to a sensitive position on January
24, 2013. On September 9, 2013, Dr. Christian appealed
that decision to the Personnel Security Appeals Board
(“PSAB”). On January 8, 2014, PSAB issued a final deci-
sion revoking Dr. Christian’s eligibility for a security
clearance and assignment to a sensitive position. Dr.
Christian resigned from her position effective January 30,
2014.
Dr. Christian appealed her July 9, 2012, indefinite
suspension to the Merit Systems Protection Board
(“Board”) on January 14, 2015. The administrative judge
held that Dr. Christian’s appeal was untimely because it
was not filed within 30 days of the imposition of the
indefinite suspension or receipt of notice of the agency’s
action and that Dr. Christian “has not shown good cause
for her delay,” and dismissed the appeal as untimely.
Supplemental Appendix (“S.A.”) 15. The Board affirmed
the initial decision. Dr. Christian petitions for review of

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CHRISTIAN v. MSPB 3
the Board decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
“This court will affirm the board’s decision to dismiss
an untimely filed petition for review unless the decision is
shown to have been ‘arbitrary, an abuse of discretion, or
otherwise not in accordance with law.’” Olivares v. Merit
Sys. Prot. Bd., 17 F.3d 386, 388 (Fed. Cir. 1994) (quoting
Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1390 (Fed.
Cir. 1982)).
The Board found that “[Dr. Christian] does not dis-
pute the administrative judge’s finding that the relevant
appealable adverse action is the imposition of her July 9,
2012 indefinite suspension.” S.A. 4. Section 1201.22(b)(1)
of the regulations provides, “an appeal must be filed no
later than 30 days after the effective date . . . of the action
being appealed, or 30 days after the date of the appel-
lant’s receipt of the agency’s decision, whichever is later.”
5 C.F.R. § 1201.22(b)(1). Id. Dr. Christian does not con-
tend that she received notice of the agency’s indefinite
suspension decision later than July 9, 2012.1 Therefore,
under 5 C.F.R. § 1201.22(b)(1), her appeal was due by
August 8, 2012. Her appeal, filed on January 14, 2015,
was 889 days late.
However, Dr. Christian argues that her time for filing
an appeal should instead be governed by 5 C.F.R.
§ 1201.154, which provides,
(a) Where the appellant has been subject to an ac-
tion appealable to the Board, he or she may either
file a timely complaint of discrimination with the
1 Dr. Christian does contend that she did not re-
ceive notice of the revocation of her security clearance
until January 29, 2014, but that is irrelevant.

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CHRISTIAN v. MSPB 4
agency or file an appeal with the Board no later
than 30 days after the effective date, if any, of the
action being appealed, or 30 days after the date of
the appellant’s receipt of the agency’s decision on
the appealable action, whichever is later.
(b) If the appellant has filed a timely formal com-
plaint of discrimination with the agency:
(1) An appeal must be filed within 30 days af-
ter the appellant receives the agency resolu-
tion or final decision on the discrimination
issue; or
(2) If the agency has not resolved the matter
or issued a final decision on the formal com-
plaint within 120 days, the appellant may ap-
peal the matter directly to the Board at any
time after the expiration of 120 calendar days.
Id.
This provision is inapplicable because Dr. Christian
did not submit a formal discrimination complaint. Rather,
Dr. Christian filed a grievance pursuant to the negotiated
Grievance Procedure Agreement between the agency and
her union, the Federal Union of Scientists and Engineers.
See Pet’r’s App’x 24 (“This grievance is being filed in
accordance with [FUSE / NUWC Negotiated Grievance
Procedure] . . . .”). The filing of a grievance under the
negotiated grievance procedure precluded Dr. Christian
from filing a formal discrimination complaint. See 29
C.F.R. 1614.301(a) (“[A] person wishing to file a complaint
or a grievance on a matter of alleged employment discrim-
ination must elect to raise the matter under either part

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CHRISTIAN v. MSPB 5
1614 or the negotiated grievance procedure, but not
both.”).2
Dr. Christian also argues that her late filing should be
excused under 5 C.F.R. § 1201.22, because she established
good cause for the delay.
Dr. Christian asserts that she had good cause for her
untimely filing because she learned, for the first time in
August 2014, of the Board’s decision in Schnedar v. Dep’t
of the Air Force, No. DE-0752-11-0343-B-1, 2014 WL
172347, at *519 (M.S.P.B. Jan. 16, 2014), holding that it
had authority to review whether the agency complied
with its own procedures for taking an adverse action
based on a revocation of security clearance, and of the
existence of certain Department of Defense regulations.
But we have held that “that the discovery of additional
legal arguments after the time period for filing a petition
for review does not constitute good cause for waiver of the
filing deadline.” Nelson v. F.D.I.C., 83 F.3d 1375, 1376
(Fed. Cir. 1996) (internal quotation marks and citations
2 Dr. Christian argues that the agency’s failure to
provide her adequate notice of appeal rights with respect
to an “arbitration (grievance) decision” constitutes good
cause for untimely filing. Pet’r’s Informal Br. at 8. Any
agency failure to provide her documentation or notice of
appeal rights as to her grievance is irrelevant to her
failure to appeal her indefinite suspension to the Board.
Moreover, the union never invoked arbitration. No such
decision issued, and therefore no appeal rights attached.
See, e.g., Parks v. Smithsonian Inst., No. DC07528810345,
39 M.S.P.R. 346, 349 (M.S.P.B. Dec. 28, 1988) (“The final
decision rendered pursuant to a negotiated grievance
procedure, which is then appealable to the Board under 5
U.S.C. § 7121(d), is the arbitrator’s decision in cases
where the grievance procedure provides for arbitration as
the last resort.”).

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CHRISTIAN v. MSPB 6
omitted). Dr. Christian argues that the Board should have
found that her alcoholism constituted good cause for her
delay. The Board found, however, that “none of [Dr.
Christian’s] allegations or medical documentation sug-
gests any limitations on her ability to conduct [her] own
affairs or otherwise suggest her addiction caused any
delay. [] At bottom, she has made no showing her addic-
tion affected or impaired her ability to file an action.” S.A.
15.
We perceive no legal error or abuse of discretion in the
Board’s determination that Dr. Christian did not show
good cause for her delay.
AFFIRMED
COSTS
No costs.

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