Steele v. MSPB , 546 F. App'x 964 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
INEZ O. STEELE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3085
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0831110758-A-1.
______________________
Decided: December 9, 2013
______________________
LESTER B. JOHNSON, III, Lester B. Johnson, III, P.C.,
of Savannah, Georgia, for petitioner.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before PROST, PLAGER, and CHEN, Circuit Judges.
2 STEELE v. MSPB
PER CURIAM
Ms. Inez O. Steele petitions for review of a Final Or-
der of the Merit Systems Protection Board (“the Board”)
dismissing her Motion for Payment of Attorney Fees as
untimely. For the reasons that follow, we affirm.
BACKGROUND
Ms. Steele applied for the lump sum death benefits of
a federal employee who died without a survivor and
without designating a beneficiary. The Office of Person-
nel Management (“OPM”) denied her application and
authorized payment of the benefits to another applicant.
Ms. Steele appealed OPM’s decision to the Board and the
Board reversed, ordering the agency to award the lump-
sum benefits to Ms. Steele as the administrator of the
estate. Steele v. Office of Pers. Mgmt., No. AT-0831-11-
0758-I-1 (M.S.P.B. Oct. 3, 2011) (“October Decision”).
The Board indicated that its October Decision would
become final on November 7, 2011. Id. at 7. The Board
further indicated that any petition for attorney fees must
be filed “no later than 60 calendar days after the date this
initial decision becomes final.” Id. at 10. Ms. Steele’s
attorney filed her Motion for Payment of Attorney Fees
with the Atlanta Regional Office on February 23, 2012,
over one-month late.
The administrative judge (“AJ”) ordered Ms. Steele to
explain why her untimely petition should not be dis-
missed. Ms. Steele responded that she needed to wait to
file her motion for attorney fees until after she received
her lump sum payment, which the agency had sent late.
The AJ denied Ms. Steele’s motion. Steele v. Office of
Pers. Mgmt, No. AT-0831-11-0758-I-1 (M.S.P.B. May 18,
2012). The AJ reasoned that the filing deadline for attor-
ney fees is not related to the agency’s compliance with its
initial decision, and therefore Ms. Steele’s explanation did
not constitute good cause. Id. at 5. Ms. Steele asked the
STEELE v. MSPB 3
Board to reconsider the AJ’s decision and the Board
declined to do so. Steele v. Office of Pers. Mgmt, No. AT-
0831-11-0758-I-1 (M.S.P.B. Jan 11, 2013).
This Petition for Review followed. We have jurisdic-
tion pursuant to 5 U.S.C. § 7703.
DISCUSSION
Our standard of review requires us to “hold unlawful
and set aside any agency action, findings, or conclusions
found to be--(1) arbitrary, capricious, an abuse of discre-
tion, 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).
Ms. Steele argues that the Board’s instructions re-
garding the time limit for filing her petition for attorney
fees were unconstitutionally vague. We disagree.
The Board’s October Decision stated that “[t]his initial
decision will become final on November 7, 2011” (empha-
sis in original) and, under the title of “ATTORNEY
FEES,” stated that “[i]f no petition for review is filed, you
may ask for the payment of attorney fees . . . by filing a
motion with this office as soon as possible, but no later
than 60 calendar days after the date this initial decision
becomes final.” October Decision at 7–10 (emphasis
added). We see no ambiguity in the Board’s written
instructions and Ms. Steele has explained none outside of
her conclusory assertions that the instructions were
“vague.” Given the facts of this case, Ms. Steele’s argu-
ments on this point are meritless.
Ms. Steele also argues that the Board’s decision
should be reversed because it improperly applied several
factors for waiving an untimely filing set forth in Alonzo
4 STEELE v. MSPB
v. Dep’t of Air Force, 4 M.S.P.R. 180 (M.S.P.B. Nov. 24,
1980). 1 The Alonzo factors include:
[1] the length of the delay; [2] whether appellant
was notified of the time limit or was otherwise
aware of it; [3] the existence of circumstances be-
yond the control of the appellant which affected
[her] ability to comply with the time limits; [4] the
degree to which negligence by the appellant has
been shown to be present or absent; [5] circum-
stances which show that any neglect involved is
excusable neglect; [6] a showing of unavoidable
casualty or misfortune; and [7] the extent and na-
ture of the prejudice to the agency which would
result from waiver of the time limit.
Id. at 184.
Ms. Steele contends that the Board excluded or ig-
nored certain Alonzo factors. Ms. Steele presumably
reaches this conclusion because the Board did not explicit-
ly address each Alonzo factor in its decision. But Ms.
Steele presents no authority that requires the Board to
explicitly address the Alonzo factors one-by-one in its
decision, nor does Ms. Steele persuasively argue that any
explicit consideration by the Board would have resulted in
a different outcome in this case. At most, Ms. Steele
argues to waive the time limit because her untimely filing
was the result of her attorney’s ‘legal strategy’ to wait to
file her petition until after she received and knew her
lump sum payment covered her accrued legal fees.
But Ms. Steele’s so-called ‘legal strategy’ did not in-
volve any circumstance “beyond [her] control,” nor does
1 We have recognized the efficacy of the Alonzo fac-
tors for good cause determinations by the Board. See
Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.
Cir. 1994).
STEELE v. MSPB 5
she establish “unavoidable casualty or misfortune” or
“excusable neglect.” Walls, 29 F.3d at 1582. Since Ms.
Steele apparently doubted whether she could cover her
attorney fees, she had all the more reason to file her
petition in a timely manner to cover for that possibility.
Ms. Steele’s subjective belief that she could wait past the
Board’s deadline to file her petition is unfortunate, but
not grounds for reversal when it was so plainly contra-
dicted by the October Decision’s plain language.
CONCLUSION
Ms. Steele raises several other arguments that are
equally meritless. For the foregoing reasons, the Board is
affirmed.
AFFIRMED