Karla P. Benton v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KARLA P. BENTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1507
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DA-0432-17-0073-I-1, DA-0752-17-0073-I-1.
______________________
Decided: October 14, 2025
______________________
K ARLA P. BENTON, Nashville, TN, pro se.
ELIZABETH W. FLETCHER, Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE, KATHERINE M ICHELLE SMITH .
______________________
Before D YK, H UGHES, and STARK, Circuit Judges.
P ER CURIAM.
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BENTON v. MSPB 2
Karla P. Benton petitions pro se for review of a final
order of the Merit Systems Protection Board (“Board”) dis-
missing as untimely her petition for review of an initial de-
cision. See Benton v. Dep’t of Homeland Sec., DA-0432-17-
0073-I-1 (M.S.P.B. Jan. 8, 2025) (“Final Order”). We af-
firm.
BACKGROUND
On November 23, 2016, Ms. Benton filed an appeal
with the Board, challenging her removal from employment
at the Department of Homeland Security (“DHS”). While
the appeal was pending, Ms. Benton and DHS entered into
a settlement agreement in which Ms. Benton agreed to
withdraw her appeal with prejudice. On March 2, 2017,
the administrative judge issued an initial decision approv-
ing the settlement agreement and dismissing the appeal.
See Benton v. Dep’t of Homeland Sec., DA-0432-17-0073-I-
1, at 2 (M.S.P.B. Mar. 2, 2017) (“Initial Decision”). That
decision stated “[t]his initial decision will become final on
April 6, 2017, unless a petition for review is filed by that
date.” Initial Decision at 3 (emphasis in original). No such
petition was filed before the April 6, 2017, deadline.
Nearly four years later, on January 28, 2021, Ms. Ben-
ton sought administrative review of the Initial Decision by
the full Board. The Acting Clerk of the Board notified
Ms. Benton that her petition for review was untimely and
that she could file a motion for the Board to accept the fil-
ing as timely and/or to waive the time limit for good cause.
Ms. Benton filed a motion, arguing that “(1) the agency
acted improperly during her initial appeal; (2) she was
forced to settle; (3) she suffered significant financial dis-
tress in the years after her appeal; and (4) there is no dead-
line to ‘correct the destruction of [her] life.’” Final Order
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BENTON v. MSPB 3
at 2 (alteration in original) (citing S. App’x 25–28).1 After
considering Ms. Benton’s motion, the Board dismissed
Ms. Benton’s petition for review as untimely, determining
that the almost four-year filing delay was “significant” and
that her motion did “not offer a persuasive excuse, show
that she acted with diligence, or set forth circumstances be-
yond [her] control that affected her ability to comply with
the filing limit.” Id. at 3 (footnote omitted).
Ms. Benton petitions for review. We have jurisdiction
under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
D ISCUSSION
We may disturb the decision of the Board only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); accord Valles v. Dep’t of State, 17 F.4th
149, 151 (Fed. Cir. 2021).
Under the Board’s regulations, a petition for review
must be filed “within 35 days after the date of the issuance
of the initial decision or, if the petitioner shows that the
initial decision was received more than 5 days after the
date of issuance [of the initial decision], within 30 days af-
ter the date the petitioner received the initial decision.”
5 C.F.R. § 1201.114(e). The April 6, 2017, deadline was
35 days after the issuance of the Initial Decision.2 Here,
the Board found that Ms. Benton sought review on Janu-
ary 28, 2021—nearly four years after the April 6, 2017,
1 “S. App’x” refers to the supplemental appendix
filed with the government’s informal brief at Dkt. No. 18.
2 Ms. Benton does not argue on appeal that she re-
ceived the Initial Decision “more than 5 days after [its]
date of issuance,” 5 C.F.R. § 1201.114(e), so we need not ad-
dress the associated 30-day deadline.
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BENTON v. MSPB 4
deadline. Despite Ms. Benton’s assertion that her petition
“was actually filed timely,” Dkt. No. 13 at 17, she did not
present any evidence that she filed her petition for review
by the April 2017 deadline.3 Where, as here, a petition for
review is untimely filed, the Board may waive its time limit
only upon a showing of good cause. 5 C.F.R. § 1201.114(g).
Delay is generally excusable “where, under the circum-
stances, a petitioner exercises diligence or ordinary pru-
dence.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653
(Fed. Cir. 1992) (en banc). In determining whether good
cause for delay is shown, the Board may consider several
factors including the following:
the length of the delay; whether the appellant was
notified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the con-
trol of the appellant which affected [her] ability to
comply with the time limits; the degree to which
negligence by the appellant has been shown to be
present or absent; circumstances which show that
any neglect involved is excusable neglect; a show-
ing of unavoidable casualty or misfortune; and the
extent and nature of the prejudice to the agency
which would result from waiver of the time limit.
Kerr v. Merit Sys. Prot. Bd., 908 F.3d 1307, 1311 (Fed. Cir.
2018) (quoting Herring v. Merit Sys. Prot. Bd., 778 F.3d
1011, 1013–14 (Fed. Cir. 2015)). “[W]hether the regulatory
time limit for an appeal should be waived based upon a
3 Ms. Benton claims that, in an order dated Febru-
ary 26, 2021, the Board found that her petition was timely.
This is incorrect. The February 26, 2021, order did not re-
fer to the timeliness of Ms. Benton’s request for review by
the full Board but instead found “sufficient cause for an ex-
tension” to file a reply to the agency’s response brief in her
case. Dkt. No. 13 at 31.
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BENTON v. MSPB 5
showing of good cause is a matter committed to the Board’s
discretion and this court will not substitute its own judg-
ment for that of the Board.” Mendoza, 966 F.2d at 653.
Here, the Board considered the relevant factors and de-
termined that Ms. Benton failed to establish good cause for
her filing delay. Specifically, the Board considered the
“length of the delay,” Kerr, 908 F.3d at 1311, and found
that the four-year filing delay was “significant,” Final Or-
der at 3. The Board implicitly found Ms. Benton “was no-
tified of the time limit or was otherwise aware of it,” Kerr,
908 F.3d at 1311, because the Board explained that the In-
itial Decision “specifically stated that the deadline to file a
petition for review was April 6, 2017,” and that the decision
“provided information on how to file a petition for review.”
Final Order at 2. The Board also considered “the existence
of circumstances beyond the control of the appellant.”
Kerr, 908 F.3d at 1311. It considered Ms. Benton’s argu-
ments alleging misconduct by DHS and the circumstances
surrounding her settlement, but determined there was
“nothing in the record [to] suggest[] that [Ms. Benton] was
prevented from raising these arguments in a timely man-
ner.” Final Order at 3–4. The Board further found that
Ms. Benton’s claims about problems accessing the Board’s
filing system were “vague” and unsupported, and, again,
that Ms. Benton had not explained how these issues pre-
vented her from filing her petition for nearly four years. Id.
at 4 n.3. The Board reasonably determined from these
findings that Ms. Benton’s assertions did not “show that
she acted with diligence[] or set forth circumstances beyond
[her] control that affected her ability to comply with the
filing limit.” Id. at 3. The Board did not err in determining
that Ms. Benton failed to make a showing of good cause.
On review to this court, Ms. Benton argues that “the
petition was accepted as discussed with [a Board repre-
sentative, Lisa White] prior to” Ms. Benton’s January 2021
submission and that she supposedly told Ms. Benton there
was no statute of limitations for the filing. Dkt. No. 13
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BENTON v. MSPB 6
at 18–19. However, Ms. Benton does not allege that this
discussion occurred before the April 2017 deadline, and any
conversation that occurred after the deadline does not pro-
vide good cause for the late filing. Ms. Benton also appears
to point to a “weather issue,” an issue with a fax machine,
and confusion over where to file her petition as circum-
stances beyond her control. See Dkt. No. 13 at 20–22. She
has not specifically alleged that any of these events oc-
curred before the original deadline. In any event, she fails
to explain how these circumstances could justify a multi-
year delay.
CONCLUSION
We have considered Ms. Benton’s remaining argu-
ments and find them unpersuasive. Accordingly, we af-
firm.
AFFIRMED
COSTS
No costs.
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