Pamela Long v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA LONG,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-2406
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH-1221-18-0286-C-1, CH-1221-18-0286-W-
1.
______________________
Decided: August 13, 2024
______________________
P AMELA J EAN L ONG, Humboldt, TN, pro se.
EMMA EATON B OND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , F RANKLIN E. WHITE, J R.
______________________
Before P ROST , REYNA, and CHEN, Circuit Judges.
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LONG v. DVA 2
P ER CURIAM .
Pamela Long appeals pro se a final decision of the
Merit Systems Protection Board (Board). Long v. Dep’t of
Veterans Affs., Nos. CH-1221-18-0286-C-1, CH-1221-18-
0286-W-1, 2023 WL 4537948 (M.S.P.B. July 13, 2023)
(Board Decision). The Board denied Ms. Long’s petition for
review of and affirmed the administrative judge’s initial
decision dismissing Ms. Long’s petition for enforcement of
a settlement agreement between Ms. Long and the Depart-
ment of Veterans Affairs (agency). The Board also dis-
missed as untimely Ms. Long’s separate petition for review
of the administrative judge’s initial decision dismissing
Ms. Long’s individual right of action (IRA) appeal as set-
tled.
On November 7, 2023, we dismissed Ms. Long’s peti-
tion for review of the Board’s final decision for lack of juris-
diction because we did not receive Ms. Long’s petition
within the 60-day statutory deadline for filing such a peti-
tion under 5 U.S.C. § 7703(b)(1)(A). See ECF No. 11. Sub-
sequently, the Supreme Court granted certiorari in Harrow
v. Department of Defense, No. 23-21, which presented a
question of whether § 7703(b)(1)(A)’s deadline is jurisdic-
tional. Accordingly, we granted Ms. Long’s motions for re-
consideration and panel rehearing, vacated the November
7, 2023 dismissal order, and reinstated Ms. Long’s appeal.
See ECF No. 19.
The Supreme Court recently decided Harrow, holding
that § 7703(b)(1)(A)’s deadline is non-jurisdictional but de-
clining to decide whether it is nonetheless mandatory and
therefore not subject to equitable tolling. See Harrow v.
Dep’t of Def., 601 U.S. 480, 489–90 (2024). In the instant
appeal, the government argues the deadline is not subject
to equitable tolling and that, in any event, Ms. Long would
not be entitled to equitable tolling. We do not reach these
issues because we find that the Board did not err on the
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LONG v. DVA 3
merits. Accordingly, for the reasons explained below, we
affirm the Board’s final decision.
BACKGROUND
In March 2018, Ms. Long filed an IRA appeal with the
Board after the agency removed her from her position as a
GS-11 perfusionist. In July 2018, the parties settled
Ms. Long’s claims. The administrative judge reviewed the
settlement agreement and determined that it was lawful
and the parties entered into it freely and understanding its
terms. Accordingly, on July 16, 2018, the administrative
judge entered the agreement into the record for purposes
of enforcement and dismissed the appeal as settled. Long
v. Dep’t of Veterans Affs., No. CH-1221-18-0286-W-1, 2018
WL 3497023 (M.S.P.B. July 16, 2018). That decision be-
came the final decision of the Board on August 20, 2018
because neither party filed a petition for review by that
date. See 5 C.F.R. § 1201.113.
On November 25, 2018, Ms. Long filed a petition with
the Board for enforcement of the settlement agreement. In
relevant part, Ms. Long alleged the agreement was invalid,
yet also alleged the agency breached the agreement’s re-
quirement that it provide a neutral employment reference.
On April 10, 2019, the administrative judge dismissed the
petition for enforcement, finding that Ms. Long did not
prove the settlement agreement was invalid or materially
breached. Long v. Dep’t of Veterans Affs., No. CH-1221-18-
0286-C-1, 2019 WL 1596427 (M.S.P.B. Apr. 10, 2019). On
May 15, 2019, Ms. Long filed a petition for review of that
initial decision. Separately, on June 11, 2019, Ms. Long
filed a petition for review of the July 16, 2018 initial deci-
sion that had already become final. The Board joined the
two appeals and issued its final decision on July 13, 2023.
First, the Board affirmed the April 10, 2019 initial de-
cision. It concluded that the administrative judge correctly
found that Ms. Long failed to establish that the agency
breached the settlement agreement. Although it also noted
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LONG v. DVA 4
that the administrative judge “arguably erred” by passing
judgment on contentions regarding the validity of the
agreement improperly presented in a petition for enforce-
ment, see Board Decision, 2023 WL 4537948, at *3, the
Board found that any such error would not provide a basis
for reversing the initial decision.
Second, the Board dismissed Ms. Long’s June 11, 2019
petition for review of the July 16, 2018 initial decision dis-
missing her IRA appeal as settled. The Board found that
the petition was untimely and Ms. Long did not demon-
strate good cause to excuse the delay because she did not
act with diligence to file the petition. See 5 C.F.R.
§ 1201.114(g) (requiring good cause for an untimely peti-
tion for review). Ms. Long’s asserted grounds for invalidat-
ing the settlement agreement alleged that, between July 6
and 11, 2018, she was coerced into signing the agreement
by the agency or her attorneys and that her attorneys did
not allow her to revoke the agreement. Given that
Ms. Long alleged she discovered this evidence supporting
invalidity by no later than July 11, 2018—five days before
the initial decision—the Board determined that the 98-day
delay between the date the initial decision became final
and the date she first alleged invalidity did not show dili-
gence.1 Board Decision, 2023 WL 4537948, at *5.
Ms. Long filed a petition for review of the Board’s final
decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
1 Although the Board considered Ms. Long’s chal-
lenge to the validity of the settlement agreement to be im-
properly presented in the November 25, 2018 petition for
enforcement, it nonetheless afforded Ms. Long the benefit
of that date for purposes of determining the length of her
delay. See Board Decision, 2023 WL 4537948, at *3–5.
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LONG v. DVA 5
D ISCUSSION
I
We must affirm the Board’s decision unless we find
that it is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020) (internal quotation
marks and citation omitted).
To establish good cause to excuse a filing delay before
the Board, “an appellant must show that the delay was ex-
cusable under the circumstances and that the appellant ex-
ercised due diligence in attempting to meet the filing
deadline.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374,
1377 (Fed. Cir. 2003). “The decision to waive the time limit
to appeal to the Board is committed to the discretion of the
Board, and is reversed only for abuse of that discretion.”
Herring v. Merit Sys. Prot. Bd., 778 F.3d 1011, 1013 (Fed.
Cir. 2015).
II
We find that substantial evidence supports the Board’s
decision that Ms. Long failed to prove the agency materi-
ally breached the neutral employment reference provision
of the settlement agreement. The Board explained that
Ms. Long supported her claim of noncompliance with mere
speculation, based on the fact that she was not selected for
four positions to which she applied. Board Decision, 2023
WL 4537948, at *3. Ms. Long provided only bare-bones al-
legations that a particular nurse practitioner and unnamed
agency officials made slanderous statements regarding her
job performance to the four medical centers where
Ms. Long applied for employment. Id. at *3. The agency,
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LONG v. DVA 6
on the other hand, provided unrebutted declarations of
(1) “the Human Resource Officer designated in the settle-
ment agreement to field employment inquiries,” stating
that she had not received any employment inquiries con-
cerning Ms. Long, and (2) the named nurse practitioner,
stating that she had not spoken to anyone outside of
Ms. Long’s facility concerning Ms. Long since April 2017,
before the execution of the settlement agreement. Id. Ac-
cordingly, the Board agreed with the administrative judge
that Ms. Long failed to prove that the agency breached the
requirement to provide her a neutral employment refer-
ence. Id. “Under the substantial evidence standard of re-
view, we do not reweigh evidence on appeal.” Jones v. Dep’t
of Health & Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir.
2016) (cleaned up).
We also find that the Board did not abuse its discretion
in determining that Ms. Long lacked good cause for her de-
lay in challenging the validity of the settlement agreement.
The Board reasonably found that Ms. Long failed to exer-
cise diligence because she discovered the alleged reasons to
invalidate the agreement at least five days before the ini-
tial decision dismissing her IRA appeal as settled yet
waited more than three months after the initial decision
became final to challenge the agreement as invalid. Board
Decision, 2023 WL 4537948, at *5.
Ms. Long presents a series of arguments to this court,
though each is beside the point. First, Ms. Long argues the
merits of her challenge to the settlement agreement’s va-
lidity. But the Board did not reach this issue because it
found Ms. Long’s invalidity challenge untimely. Ms. Long
next argues the merits of her IRA appeal and identifies al-
leged evidence in support thereof. This issue, too, was not
reached by the Board because Ms. Long settled her claims
with the agency, and the Board accordingly dismissed her
appeal as settled. Finally, Ms. Long alleges that she has
discovered “new information” and “new evidence” that
shows good cause for her untimely filing. Pet’r’s Informal
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LONG v. DVA 7
Br. 5, 8. We do not consider new evidence that was not
presented to the Board. See Oshiver ex rel. Oshiver v. Off.
of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990). In any
event, Ms. Long does not clearly explain what the new in-
formation or evidence is, where it lies among the hundreds
of pages of appendices she has submitted, or how it estab-
lishes that the Board abused its discretion in finding that
Ms. Long failed to exercise diligence.
CONCLUSION
We have considered Ms. Long’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Board’s final decision.
AFFIRMED
COSTS
No costs.
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