Joe D. Cameron Jerusalem v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3148
JOE D. CAMERON JERUSALEM,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Joe D. Cameron Jerusalem, of Detroit, Michigan, pro se.
Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3148
JOE D. CAMERON JERUSALEM,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752880195-I-1.
__________________________
DECIDED: June 6, 2008
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
Joe D. Cameron Jerusalem petitions for review of the final decision of the Merit
Systems Protection Board ("Board"), dismissing his petition for review to the Board as
untimely and denying his request to reopen his appeal, which was dismissed nineteen
years earlier pursuant to a settlement agreement. Jerusalem v. Dep't of the Air Force,
No. AT-0752-88-0195-I-1 (M.S.P.B. Jan. 28, 2008). Because Petitioner failed to
demonstrate good cause for the nineteen-year delay in filing his petition for review with
the Board, we affirm.

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I. BACKGROUND
Jerusalem was employed by the Department of the Air Force as a Telephone
Operator, GS-2, until removed from his position in 1987. [RA-2] He appealed his
removal to the Board. Represented by counsel, Jerusalem reached a settlement
agreement with the government on March 8, 1988, by which he agreed to resign in
exchange for withdrawal of the removal and payment of $3,000. [RA-2] He also
agreed not to file any appeal, complaint, or other legal action on matters arising out of
his employment with the Air Force. [RA-12] The administrative judge ("AJ") dismissed
his appeal as settled on March 22, 1988.
On May 2, 2007, Jerusalem filed an Individual Right of Action appeal ("IRA")
alleging that he was coerced to resign in 1988 in retaliation for whistleblowing activities.
The AJ dismissed his IRA for lack of jurisdiction, holding that the Board was only
granted jurisdiction over IRAs under the Whistleblower Protection Act in 1989 and that
the Board thus had no jurisdiction to review whistleblower claims relating to personnel
actions that occurred prior to 1989. [RA-13] The AJ further held that Jerusalem could
not challenge his March 1988 settlement agreement except by filing with the full Board a
petition for review of the March 22, 1988 decision. [RA-13-14] The AJ then forwarded
his submissions and the record to the Board.
The full Board treated Jerusalem's IRA as a petition for review or, in the
alternative, a request to reopen the appeal. After being advised by the Board that his
petition was untimely and that he had to show good cause for the delay, Jerusalem
responded that he suffered from mental illness and submitted medical records and other
evidence in support. [RA-2-3] The Board concluded, however, that Jerusalem had
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failed to adequately prove good cause for the nineteen-year delay because the medical
evidence and records he submitted only accounted for five of the nineteen years. [RA-
4-5] The Board also declined to exercise its discretion to reopen the appeal given the
length of the delay. As a result, the Board dismissed Jerusalem's petition. Jerusalem
then filed the present petition for review with this court. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II. DISCUSSION
Our standard of review here is narrow. We must affirm a decision of the Board
unless it is "(1) arbitrary, capricious, an abuse of discretion, 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); Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
We see no error in the Board's treatment of Jerusalem's IRA as a petition for
review of the March 1988 decision or, in the alternative, a motion to reopen the 1988
appeal. Thus, the Board did not abuse its discretion or act contrary to law by requiring
Jerusalem to show good cause for the nineteen-year delay between when the 1988
decision became final and his filing of the IRA. See 5 C.F.R. § 1201.56(a)(2)(ii) ("The
appellant has the burden of proof, by a preponderance of the evidence, with respect to
. . . [t]he timeliness of the appeal . . . ."); Lacy v. Dep't of the Navy, 78 M.S.P.R. 434,
436 (1998). When, as here, the petitioner alleges that illness prevented timely filing, he
must "(1) [i]dentify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the alleged illness during that time
period; and (3) explain how the illness prevented him from timely filing his appeal or a
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request for an extension of time." Lacy, 78 M.S.P.R. at 437. The medical evidence
must cover the entire period of the delay. Perrot v. Dep't of the Navy, 84 M.S.P.R. 468,
471 (1999).
Jerusalem filed his IRA in May 2007 while the deadline for his filing a petition for
review of the March 1988 decision was in April 1988. He submitted medical records
indicating that he was treated for his mental illness from June 1997 to August 2002. He
asserted that he was hospitalized from sometime in 2002 to sometime in 2006 and that
he was declared legally incompetent in October 1987, but he provided no records or
other evidence to corroborate these assertions. Finally, he also submitted Social
Security Administration records indicating that he has been receiving disability benefits
since June 1987, but neither those records nor any other submitted evidence indicated
what medical conditions were the basis for the benefits. Nor did they show he was
mentally or physically incapable to file a petition for review or motion for extension of
time with the Board. Based on this record, the Board found that Jerusalem had failed to
demonstrate that illness impaired his ability to timely file his petition for the entire
nineteen years between when the initial decision became final and when he filed his
IRA. This finding is supported by substantial evidence.
On appeal, Jerusalem further argues that other medical records are unavailable
because they were only kept for a year. He does not identify which records he is
referring to, what time periods they cover, or what the records would show. He further
does not explain why these alleged records were only kept for a year when he was able
to locate and produce other medical records that were kept for nearly a decade. These
allegations on appeal are thus an insufficient basis to hold the Board's decision to be
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2008-3148 5
arbitrary, capricious, an abuse of discretion, or not in accordance with law. In addition,
we see no basis to hold, nor does Jerusalem argue, that the Board's decision to not
exercise its discretion to reopen the case was erroneous. As a result, we must affirm.
COSTS
No costs.

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