Neese v. Merit Sys. Prot. Bd.

ASHLEY B. NEESE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent

No. 2021-2321

United States Court of Appeals, Federal Circuit

May 4, 2022

This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. DC-0752-21-0420-I-1.

Rosanna Lopez, Lopez & Wu, PLLC, Reston, VA, for petitioner.

Elizabeth Ward Fletcher, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by Tristan L. Leavitt, Katherine Michelle Smith.

Before Prost, Reyna, and Taranto, Circuit Judges.

PER CURIAM.

Ashley Neese, an attorney represented by counsel throughout the present matter, filed an appeal at the Merit Systems Protection Board under 5 U.S.C. §§ 7512, 7701 challenging her removal from, and seeking reinstatement to her position as a federal employee. Because the appeal appeared to have been filed after the applicable Board deadline for appealing agency actions, see 5 C.F.R § 1201.22, the administrative judge assigned to the matter issued an order to show cause, by a specified date, why the appeal should not be dismissed because of untimeliness. SAppx. 45. Nine days after the response deadline had passed, with no response from Ms. Neese, the administrative judge issued an initial decision dismissing the removal appeal as untimely. Neese v. Dep't of Justice, No. DC-0752-21-0420-I-1, 2021 WL 2414242 (M.S.P.B. June 8, 2021).

Later that day, Ms. Neese filed a document entitled "Reopening an Appeal Dismissed Without Prejudice" in which she responded to the show cause order, Appx. 189- 213, and briefly requested "that the Board consider her response, as she believes good cause has been shown" for missing the deadline for filing it, Appx. 190; Appx. 189. She did not attach declarations showing such good cause; in particular, she did not attach the September 2021 and February 2022 declarations she has included in her appendix in this court, which had not yet been written. Three days after making her "Reopening" filing, Ms. Neese informed the Board that she did not intend that document to constitute a petition for review of the initial decision, and the Board deleted it pursuant to her request. SAppx. 52. Ms. Neese did not ultimately petition the Board for review of the initial decision, which on July 13, 2021, became the final decision of the Board under 5 U.S.C. § 7703(b)(1). SAppx. 5.

Within the 60 days allowed by 5 U.S.C. § 7703(b)(1)(A), Ms. Neese appealed to this court. This court has jurisdiction under 28 U.S.C. § 1295(a)(9) to hear the appeal from the Board's final decision dismissing Ms. Neese's removal appeal.

The sole argument Ms. Neese presents in her opening brief is that good cause existed for her failure to timely respond to the show cause order. But that is not a challenge to a ruling made by the Board, because Ms. Neese did not ask the Board (either the full Board or the administrative judge) to decide that she had good cause for missing the deadline for responding to the show-cause order, and no such decision was made by the Board (either the full Board or the administrative judge). With respect to this good-cause argument, there was no "agency action, finding[], or conclusion[]." 5 U.S.C. § 7703(c) (providing that, on appeal, we are to "hold unlawful" or "set aside" "any action, findings, or conclusions" that are arbitrary, capricious, an abuse of discretion, or contrary to law; were obtained in violation of procedural requirements; or are unsupported by substantial evidence). Reflecting the statutory scope of review, we routinely refuse requests to address issues not presented to or decided by the Board. See, e.g., Hansen v. Dep't of Homeland Security, 911 F.3d 1362, 1369-70 (Fed. Cir. 2018); Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998).

Moreover even if we assume that we have the authority to consider the good-cause issue where no Board ruling on the issue was sought or obtained, we do not see a sufficient basis for this court to do so. Ms. Neese could have petitioned the full Board to remand the case back to the administrative judge to consider the belated response-a path that Ms. Neese initiated but then abandoned. SAppx. 52; see, e.g., 5 C.F.R. § 1201.117(a)(4). The absence of a Board quorum at the time does not justify this court's undertaking itself to decide in the first instance a good-cause question that typically involves Board discretion and deferential review. See generally Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc); Bacashihua v. Merit Sys. Prot. Bd., 811 F.2d 1498, 1500 (Fed. Cir. 1987); Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986). And as the Board seems to acknowledge in its brief in this court, Appellee Br. 12 n.2, Ms. Neese may yet seek reopening of the...