NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CATHERINE M. PACILLI,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3135
__________________________
Petition for review of the Merit Systems Protection
Board in SF1221090862-W-1.
__________________________
Decided: November 5, 2010
__________________________
CATHERINE M. PACILLI, of Fresno, California, pro se.
DAVID S. BROOKS, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMAN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
PACILLI v. MSPB 2
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Catherine M. Pacilli petitions for review of
the final decision of the Merit Systems Protection Board
(“Board”), which dismissed her August 2, 2009 appeal.
The Board found that as an Individual Right of Action
(“IRA”) appeal it was untimely filed, and to the extent
that it was a petition for review of a 2005 initial decision,
it failed to meet the Board’s criteria for review. Pacilli v.
Dep’t of Veterans Affairs, 113 M.S.P.R. 526 (2010). We
affirm.
BACKGROUND
The relevant facts are not in dispute. In October
2003, Ms. Pacilli filed a whistleblower reprisal complaint
with the U.S. Office of Special Counsel (“OSC”) against
the Department of Veterans Affairs. Resp’t’s App. 19-25.
Thereafter, Ms. Pacilli resigned from her position as a
Registered Nurse effective December 19, 2003, and filed
an appeal with the Board, alleging her resignation was
involuntary and a constructive discharge. In an initial
decision, the administrative judge dismissed that appeal
because she was not an employee for Board appeal pur-
poses. Pacilli v. Dep’t of Veterans Affairs, No.
SF0752040123-I-1 (M.S.P.B. Jan. 22, 2004) (initial deci-
sion). On February 10, 2005, the Board denied her peti-
tion for review of that decision. Pacilli v. Dep’t of
Veterans Affairs, 98 M.S.P.R. 190 (2005). Because Ms.
Pacilli had filed a complaint raising whistleblower repri-
sal with OSC in October 2003, the Board forwarded the
complaint to the regional office for adjudication as a new
IRA appeal. The administrative judge dismissed that
complaint without prejudice pending the completion of
3 PACILLI v. MSPB
the OSC investigation. Pacilli v. Dep’t of Veterans Affairs,
No. SF1221050393-W-1, (M.S.P.B. Feb. 24, 2005) (initial
decision).
On June 21, 2005, OSC sent Ms. Pacilli a letter (“June
21, 2005 OSC letter”), which indicated that it had termi-
nated its inquiry into her whistleblower allegations and
she could seek corrective action for her allegations with
the Board by filing an IRA appeal within sixty-five days
after the date of the letter. Resp’t’s App. 26. Through her
attorney, Ms. Pacilli refiled an IRA appeal with the Board
on July 8, 2005 (“2005 IRA appeal”), with a copy of the
June 21, 2005 OSC letter enclosed. Resp’t’s App. 27. 1 On
October 6, 2005, the administrative judge issued an initial
decision (“October 6, 2005 initial decision”), which dis-
missed her refiled IRA appeal for lack of jurisdiction
based on the determination that she did not exhaust any
whistleblower reprisal claim because she made nonspe-
cific claims before OSC. Pacilli v. Dep’t of Veterans Af-
fairs, No. SF1221050393W-2 (M.S.P.B. Oct. 6, 2005)
(initial decision). Ms. Pacilli did not petition for review
and that initial decision became the final decision of the
Board in November 2005.
Nearly four years later, on August 2, 2009, Ms. Pacilli
filed the instant appeal (“2009 appeal”) seeking the
Board’s consideration of her whistleblower reprisal alle-
gations raised in 2003. In addition to submitting the
1 Meanwhile, Ms. Pacilli, through her attorney, also
filed a lawsuit against the Department of Veterans Af-
fairs in U.S. District Court for the Eastern District of
California on August 25, 2005. It was dismissed under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. Pacilli v. U.S. Dep’t of Veterans
Affairs, No. 05-1095, 2006 WL 2166574 (E.D. Cal. July 31,
2006).
PACILLI v. MSPB 4
June 21, 2005 OSC letter, she submitted an OSC letter
from June 1, 2005, informing her of OSC’s preliminary
determination not to pursue her action further, and her
response to that letter, dated June 7, 2005. Ms. Pacilli
did not submit these latter two documents to the Board in
her 2005 IRA appeal. On August 10, 2009, an adminis-
trative judge issued an Acknowledgement Order to the
parties, explaining that it appeared that Ms. Pacilli’s
appeal was late and ordered her to show that: (1) the
appeal was timely; (2) her employing agency engaged in
affirmative misconduct which affected the timeliness of
her appeal; or (3) OSC failed to notify her that it had
terminated its investigation of her complaint. Pacilli v.
Dep’t of Veterans Affairs, No. SF1221090862-W-1
(M.S.P.B. Aug. 10, 2009) (acknowledgement order). In
response, Ms. Pacilli asked for an exception to the time
limit based on her former attorney’s misrepresentations,
misconduct, and disbarment, which purportedly led to her
failure to meet the Board deadlines. Resp’t’s App. 49.
The administrative judge received a copy of the Cali-
fornia State Bar report in which Ms. Pacilli’s former
attorney admitted to mishandling funds of five clients and
was thus disbarred. Resp’t’s App. 50-63. While the report
did not identify Ms. Pacilli as one of the five clients, it did
identify that there was an ongoing investigation with
regard to a person with her last name. Resp’t’s App. 60.
Ms. Pacilli informed the administrative judge that the
California State Bar found her former attorney’s miscon-
duct affected her case and returned her $5,000 retainer to
her, Resp’t’s App. 68, which was verified in a letter sub-
mitted to the Board after the administrative judge issued
his initial decision on September 21, 2009. Resp’t’s App.
70-73. In his initial decision, the administrative judge
dismissed Ms. Pacilli’s 2009 appeal as an untimely IRA
appeal without good cause shown for the four-year delay.
5 PACILLI v. MSPB
Pacilli v. Dep’t of Veterans Affairs, No. SF1221090862-W-
1 (M.S.P.B. Sept. 1, 2009) (initial decision). Ms. Pacilli
timely petitioned for review by the full Board. In denying
Ms. Pacilli’s petition for review on April 23, 2010, the
Board reopened the matter on its own motion, modified
the initial decision, and then again dismissed her 2009
IRA appeal as untimely. Pacilli, 113 M.S.P.R. at 527.
The Board first considered Ms. Pacilli’s 2009 appeal
as a new IRA. The Board agreed with the administrative
judge that her new IRA appeal was untimely filed by
almost four years, but explained that the Board cannot
waive the statutory time limit for filing an IRA appeal
upon a finding of “good cause.” Id. at 531. The Board
noted that equitable tolling should apply to a statutory
deadline in some circumstances, but found that Ms.
Pacilli’s allegations relating to her former attorney’s
misconduct did not warrant its application to excuse her
four-year delay in filing her appeal. Id. The Board then
considered Ms. Pacilli’s petition as a petition for review of
the October 6, 2005 initial decision based on her former
attorney’s misconduct. The court found that she failed to
meet the criteria for review because she neither made an
argument establishing error by the administrative judge
nor presented new and material evidence affecting the
outcome of the decision. Id. at 532. Accordingly, the
Board did not reach the additional question of the timeli-
ness of Ms. Pacilli’s petition for review. Id. at 531-32.
Ms. Pacilli timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, Ms. Pacilli appears to argue that we
should apply the doctrine of equitable tolling and afford
her the opportunity to have her case heard on the merits
PACILLI v. MSPB 6
because she exercised due diligence in reopening her case
upon learning about her former attorney’s misconduct and
his failure to pursue all legal avenues in her case. We
must determine whether the Board erred in dismissing
Ms. Pacilli’s instant appeal because she (1) untimely filed
a new IRA appeal and (2) failed to meet the criteria for
review of the October 6, 2005 initial decision. We may set
aside a decision of the Board only when it is: “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c)(1)-(3).
We first address the Board’s dismissal of Ms. Pacilli’s
instant appeal because she untimely filed a new IRA
appeal. The Whistleblower Protection Act (“WPA”) pro-
vides that an IRA appeal may be filed with the Board if
“no more than 60 days have elapsed since notification was
provided to [the] employee, former employee, or applicant
for employment that [OSC’s] investigation was termi-
nated.” 5 U.S.C. § 1214(a)(3)(A)(ii). Similarly, the
Board's regulations provide that an IRA appeal must be
filed no later than sixty-five days after the issuance of
OSC’s written notification that the investigation was
terminated or, if the appellant shows that OSC’s notifica-
tion was received more than five days after the date of
issuance, within sixty days after the date the appellant
received the notification. 5 C.F.R. § 1209.5(a)(1). The
OSC letter informing Ms. Pacilli that it terminated its
investigation triggered the time limit for filing her IRA
appeal. Ms. Pacilli does not dispute that she received the
June 21, 2005 OSC letter and submitted that letter to the
Board when she filed her 2005 IRA appeal. Indeed, Ms.
Pacilli’s 2009 IRA appeal nearly four years later was
7 PACILLI v. MSPB
untimely because it was well beyond her deadline to file
within sixty-five days of receipt of OSC’s notice.
In this case, the Board properly modified the adminis-
trative judge’s initial decision because the time limit for
filing an IRA appeal cannot be waived for good cause. See
MacDonald v. Dep’t of Justice, 105 M.S.P.R. 83, 88 (2007);
Wood v. Dep’t of the Air Force, 54 M.S.P.R. 587, 592
(1992). Thus, we must inquire whether the Board erred
in finding that equitable tolling did not excuse Ms.
Pacilli’s untimeliness. The Board recognized that there
are some circumstances that warrant the application of
equitable tolling to a statutory deadline, such as where a
complainant has been induced or tricked by her adver-
sary’s misconduct into allowing the filing deadline to pass.
Pacilli, 113 M.S.P.R. at 531. The Board, however, deter-
mined that Ms. Pacilli failed to allege facts that would
justify the application of the doctrine here. This finding is
supported by substantial evidence.
As a preliminary matter, we note that Ms. Pacilli’s
request that we waive the filing deadline because OSC led
her to believe that it would find in her favor is unpersua-
sive because that purportedly occurred before the issu-
ance of the June 21, 2005 OSC letter and thus did not
impact her ability to appeal. In addition, Ms. Pacilli
urges us to apply Edwards v. Department of Veterans
Affairs, 111 M.S.P.R. 297, 300 (2009), and find that her
former attorney’s misconduct—like a “misunderstanding”
between Ms. Edwards and her attorney—should excuse
Ms. Pacilli’s untimeliness in filing this appeal. Further,
Ms. Pacilli argues that based on her former attorney’s
misconduct, she was unable to pursue all legal avenues as
she was unaware of the Board’s appeal process.
PACILLI v. MSPB 8
In Edwards, the Board found that there was a “mis-
communication between the appellant and her attorney
such that the appellant’s diligent efforts to prosecute her
appeal were thwarted by what appears to be her attor-
ney’s negligence. Furthermore, it is clear that the appel-
lant and her attorney were not acting as one.” Id. In
contrast to Edwards, the Board here found Ms. Pacilli did
not make “any specific claim that her former attorney
thwarted her diligent efforts to prosecute a timely Board
appeal.” Pacilli, 113 M.S.P.R. at 531. Indeed, in this
case, Ms. Pacilli, acting through her attorney, did file a
timely IRA appeal in 2005. In addition, Ms. Pacilli’s
letter to OSC on June 7, 2005, which she submitted to the
Board in her 2009 IRA appeal, demonstrates that she
took an active role in disputing OSC’s preliminary deter-
mination. She wrote, “I can assure you that I am seeking
other avenues to pursue this case, including appealing to
the Merit Board.” Resp’t’s App. 45. Ms. Pacilli fails to
show that her attorney prevented her from pursuing her
appeal. Therefore, substantial evidence supports the
Board’s determination that equitable tolling is not war-
ranted in this case to excuse Ms. Pacilli’s approximate
four-year delay in filing this IRA appeal.
Next we turn to the Board’s determination that Ms.
Pacilli’s petition for review of the October 6, 2005 initial
decision fails to meet the Board’s criteria for review. The
Board considered Ms. Pacilli’s arguments that she was
misled by her former attorney, and the evidence demon-
strating that her former attorney was disbarred in 2008
for mishandling clients’ funds, purportedly had problems
with alcohol and depression, and was under criminal
investigation. The Board, however, determined that Ms.
Pacilli did not show a link between her former attorney’s
misconduct and the outcome of the October 6, 2005 initial
decision. In that connection, the Board found that Ms.
9 PACILLI v. MSPB
Pacilli failed to establish that “her diligent efforts to
prosecute an appeal were thwarted without her knowl-
edge, by her attorney’s deceptions, negligence, or malfea-
sance.” Pacilli, 113 M.S.P.R. at 532. The Board also
found that Ms. Pacilli failed to allege any errors in that
decision. Id. As a result, the Board determined that Ms.
Pacilli’s petition for review failed to meet the Board’s
criteria for review, and it did not need to reach the issue
of timeliness. Id. at 531-32.
Despite the Board’s leniency in appellants’ petitions
for review, the Board still requires petitions for review to
state objections to the initial decision that are supported
by reference to applicable laws or regulations. 5 C.F.R.
§ 1201.115(a). Ms. Pacilli does not dispute that she failed
to meet the criteria for review. Although she complains
that her former attorney engaged in misconduct in her
case, Ms. Pacilli does not demonstrate that her former
attorney deceived her about her 2005 IRA appeal. Nei-
ther does Ms. Pacilli specifically allege an error in the
October 5, 2005 initial decision. Because Ms. Pacilli fails
to explain how the alleged attorney misconduct provides a
legitimate basis for her petition for review or what error
the administrative judge made, we conclude that the
Board did not err in finding that Ms. Pacilli’s petition for
review failed to meet the Board’s criteria for review. 5
C.F.R. § 1201.115(d). Accordingly, we affirm. 2
COSTS
Each party shall bear its own costs.
AFFIRMED
2 Because we affirm the Board’s dismissal of her
appeal, we do not reach Ms. Pacilli’s arguments directed
toward the merits of her whistleblower reprisal claim.