Case: 23-1134 Document: 22 Page: 1 Filed: 05/09/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAJUANNA R. SCOTT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1134
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-22-0408-I-1.
______________________
Decided: May 9, 2023
______________________
LAJUANNA R. SCOTT, La Grange, TX, pro se.
JEFFREY GAUGER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Case: 23-1134 Document: 22 Page: 2 Filed: 05/09/2023
2 SCOTT v. MSPB
Before MOORE, Chief Judge, MAYER and HUGHES, Circuit
Judges.
PER CURIAM.
LaJuanna Scott appeals a decision of the Merit Sys-
tems Protection Board (Board or MSPB) dismissing her ap-
peal as untimely. For the following reasons, we affirm.
BACKGROUND
Ms. Scott was previously employed by the United
States Postal Service (USPS) as a full-time Regular City
Carrier in Houston, Texas. S. Appx. 23. By letter dated
May 24, 2021, the USPS proposed Ms. Scott’s removal
based on charges of failure to follow FMLA leave request-
ing procedures, failure to follow her supervisor’s directions,
and unauthorized absences. S. Appx. 2, 17–21. Ms. Scott
did not respond. S. Appx. 2. On August 30, 2021, the USPS
informed Ms. Scott by express, priority, and first-class mail
of its decision to remove her effective September 3, 2021.
S. Appx. 17–21. The August 30th letter notified Ms. Scott
she could appeal the USPS’ decision to the Board and pro-
vided her with a copy of the appropriate appeal form.
S. Appx. 19. It also informed her that if she wished to ap-
peal, she must do so “within 30 days after the date [she]
received this notice or the effective date of this decision,
whichever is later” and that if she missed the deadline
without good cause her appeal would be dismissed.
S. Appx. 19.
Ms. Scott did not attempt to appeal her removal until
May 31, 2022, when she submitted a notice of appeal by
email to the Clerk of the Board. S. Appx. 30. On June 1,
2022, the Clerk responded that appeals cannot be filed by
email and informed Ms. Scott she should instead use the e-
filing system or submit her appeal by regular mail.
S. Appx. 30. Ms. Scott then filed a notice of appeal by reg-
ular mail on August 17, 2022. By order of August 23, 2022,
an administrative judge (AJ) of the Board informed Ms.
Case: 23-1134 Document: 22 Page: 3 Filed: 05/09/2023
SCOTT v. MSPB 3
Scott there was a question as to whether her appeal was
timely filed and instructed her to provide evidence either
that it was timely or that good cause existed for any delay.
S. Appx. 32–36 (Show Cause Order). Ms. Scott did not re-
spond.
On September 28, 2022, the AJ dismissed Ms. Scott’s
appeal as untimely. The AJ found there was sufficient ev-
idence to support that Ms. Scott did not receive the USPS’
August 30, 2021 notice of removal, but noted Ms. Scott con-
ceded she had received the removal letter by May 18, 2022.
S. Appx. 4. As such, the deadline for timely appeal was no
later than June 17, 2022, sixty-one days before her August
17th filing. S. Appx. 4. The AJ then considered whether
Ms. Scott’s delay was excusable for good cause. S. Appx. 4–
6. The AJ noted that while Ms. Scott had attempted to ap-
peal her removal on May 31, 2022—within the 30-day
deadline—that appeal was ineffectual and she had pro-
vided no explanation why she did not refile until August
17, despite the Clerk’s explicit instructions on June 1 about
how to do so. S. Appx. 5–6. The AJ also considered Ms.
Scott’s allegations that she was suffering from a back in-
jury while simultaneously caring for her mother but found
Ms. Scott had failed to establish any causal link between
those unfortunate circumstances and her delay or to pro-
vide corroborating medical evidence. S. Appx. 6. Because
Ms. Scott did not otherwise demonstrate good cause for her
delay, the AJ dismissed. Id. Ms. Scott appeals. We have
jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and
5 U.S.C.
§ 7703(b)(1)(A).
DISCUSSION
Pursuant to
5 C.F.R. § 1201.22(b)(1), “an appeal must
be filed 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, whichever
is later.” “[W]hether the regulatory time limit for an appeal
should be waived based upon a showing of good cause is a
Case: 23-1134 Document: 22 Page: 4 Filed: 05/09/2023
4 SCOTT v. MSPB
matter committed to the Board’s discretion and this court
will not substitute its own judgment for that of the Board.”
Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed.
Cir. 1992) (en banc). We will reverse the Board’s dismissal
for failure to timely appeal “only if it is arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with the law.”
Id. (citing
5 U.S.C. § 7703(c)). Ms. Scott bore
the burden to demonstrate that her failure to timely appeal
was excused by good cause. Phillips v. U.S. Postal Serv.,
695 F.2d 1389, 1390 (Fed. Cir. 1982).
The AJ did not abuse his discretion in determining Ms.
Scott failed to meet her burden to demonstrate good cause
for her delay. Before the Board, Ms. Scott did not dispute
that she received the Clerk’s June 1 email explaining that
appeals must be filed through the MSPB’s e-filing system
or through regular mail. S. Appx. 5. Nor did Ms. Scott offer
any explanation as to why she delayed another six weeks
to act on that information.
Id. Further, because Ms. Scott
did not respond to the AJ’s Show Cause Order to produce
evidence, the AJ was left only to consider Ms. Scott’s un-
supported allegations regarding her delay. See Mendoza,
966 F.2d at 653 (“A petitioner who ignores an order of the
Administrative Judge does so at his or her own peril.”).
The AJ considered Ms. Scott’s allegations regarding her
medical and family condition, as well as Ms. Scott’s pro se
status, but appropriately found these uncorroborated alle-
gations did not justify waiving a sixty-one-day delay. See
Ford-Clifton v. Dep’t of Veterans Affs.,
661 F.3d 655, 659
(Fed. Cir. 2011) (“[W]hen petitioners allege delay for medi-
cal reasons, they must affirmatively identify medical evi-
dence that addresses the entire period of delay and explain
how the illness prevented a timely filing.”). In the absence
of any corroborating evidence demonstrating Ms. Scott’s
delay was excusable, the AJ did not abuse his discretion in
declining to waive the filing deadline.
On appeal, Ms. Scott argues she did not check her
email for several weeks after attempting to submit her
Case: 23-1134 Document: 22 Page: 5 Filed: 05/09/2023
SCOTT v. MSPB 5
appeal, and therefore missed the Clerk’s June 1 email, be-
cause she was depressed and was expecting a response by
mail. 1 Appellant’s Informal Op. Br. 2. As noted, it does not
appear Ms. Scott raised this argument to the Board. See
S. Appx. 2, 5–6 (noting Ms. Scott did not respond to the
Show Cause Order and did not dispute her receipt of the
June 1 email). But even if she had, it would not demon-
strate the AJ’s decision was an abuse of discretion. Allega-
tions of physical or mental illness must be substantiated
“by supporting documentation or other evidence.” Ford-
Clifton,
661 F.3d at 659 (quoting
5 C.F.R. § 1201.114(f)(2)).
Here, Ms. Scott has not submitted any medical records in-
dicating she suffers from depression or explained with any
particularity how her depression prevented her from
timely filing her appeal or requesting an extension. Simi-
larly, Ms. Scott has not produced any evidence indicating
her expectation of a paper mail response was due to misin-
formation from the USPS or MSPB, and her failure to oth-
erwise check her email for several weeks does not excuse
her late response. Mendoza,
966 F.2d at 653 (noting excus-
able delay requires a petitioner to exercise “diligence or
1 Ms. Scott also alleges she was improperly removed
because of discrimination based on her back injuries.
S. Appx. 38; Appellant’s Informal Reply Br. 1. Because Ms.
Scott did not raise a discrimination claim to the Board, see
S. Appx. 22, she cannot raise it on appeal. Synan v. Merit
Sys. Prot. Bd.,
765 F.2d 1099, 1101 (Fed. Cir. 1985) (“Peti-
tioner cannot raise before this court an issue which could
have been raised below but which was not.”). Further, to
the extent Ms. Scott alleges her removal was discrimina-
tory, we lack jurisdiction to review the Board’s decision in
the first instance. Kloeckner v. Solis,
568 U.S. 41, 56 (2012)
(“A federal employee who claims that an agency action ap-
pealable to the MSPB violates an antidiscrimination stat-
ute . . . should seek judicial review in district court, not in
the Federal Circuit.”).
Case: 23-1134 Document: 22 Page: 6 Filed: 05/09/2023
6 SCOTT v. MSPB
ordinary prudence”). As such, Ms. Scott cannot meet the
heavy burden necessary to set aside the Board’s decision
on appeal.
CONCLUSION
We have considered Ms. Scott’s other arguments and
find them unpersuasive. For the reasons given, we affirm
the Board’s decision dismissing Ms. Scott’s appeal as un-
timely.
AFFIRMED
COSTS
No costs.
