Rose M. Duvuvuei v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSE M. DUVUVUEI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2263
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-19-0405-I-1.
______________________
Decided: January 14, 2026
______________________
ROSE M. D UVUVUEI, Delaware, OH, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before D YK, STOLL , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
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DUVUVUEI v. MSPB 2
Rose Duvuvuei petitions for review of the Final Order
of the Merit Systems Protection Board that dismissed her
appeal as untimely. Because Ms. Duvuvuei untimely filed
her appeal without a showing of good cause for the delay,
we affirm.
BACKGROUND
On May 6, 2019, Ms. Duvuvuei was removed from her
position as a Financial Systems Specialist with the Defense
Finance and Accounting Service (DFAS). SAppx 33–35.1
Ms. Duvuvuei’s notice of removal stated that she was being
removed for absence without leave and provided infor-
mation on her appeal rights to the Board, which stated that
she must file her “appeal within 30 calendar days of the
effective date of [Ms. Duvuvuei’s notice of removal].”
SAppx 33–36. Ms. Duvuvuei filed an appeal with the
Board challenging the removal. SAppx 26; SAppx 40. The
appeal was postmarked on June 6, 2019 and was received
by the Board on June 10, 2019. SAppx 26; SAppx 40.
On June 11, 2019, the administrative judge issued an
order on timeliness, informing Ms. Duvuvuei that there
was “a question whether [Ms. Duvuvuei’s] appeal was filed
within the time period required by the Board’s regula-
tions.” Resp. Inf. Br. 2 (citing SAppx 41–45). The admin-
istrative judge stated that the filing period for
Ms. Duvuvuei’s case “began on May 6, 2019, and that [her]
appeal was filed by regular mail on June 6, 2019,” making
Ms. Duvuvuei’s appeal one day late. SAppx 42.
Ms. Duvuvuei was directed to file evidence showing that
she filed her appeal “on time or that good cause exists for
the delay in filing.” Id. The administrative judge’s order
also specifically stated that if an illness caused a delay in
filing, then Ms. Duvuvuei should provide evidence of the
1 “SAppx” refers to the Supplemental Appendix filed
by the Respondent with its Informal Brief. See ECF No. 24.
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DUVUVUEI v. MSPB 3
illness and an explanation of how the illness prevented her
from timely filing her appeal. SAppx 43–44.
On June 16, 2019, Ms. Duvuvuei responded to the
June 11, 2019 order, stating that she sought the advice of
others regarding the appeal deadline and that she had been
advised the deadline was June 6, 2019. SAppx 46. On
June 21, 2019, DFAS filed “a motion to dismiss, a response
to the June 11, 2019 Order, and the agency file.” Resp. Inf.
Br. 3 (citing SAppx 26). On July 1, 2019, Ms. Duvuvuei
filed a response to DFAS’s motion, stating that she had
been ill for a long period of time and sought the advice of
several friends and professionals, particularly the Union
President2 at DFAS, regarding the appeal deadline be-
cause “[Ms. Duvuvuei] wanted to ensure [she] was han-
dling the appeal as necessary.” SAppx 47–48.
On July 2, 2019, the administrative judge dismissed
Ms. Duvuvuei’s appeal as untimely filed, stating that
Ms. Duvuvuei did not show good cause for the delay.
SAppx 9–16. The administrative judge determined that
because Ms. Duvuvuei’s notice of removal was sent on
May 6, 2019, the deadline for her to file her appeal would
have been 30 days later on June 5, 2019, making
Ms. Duvuvuei’s appeal one day late. SAppx 11. The ad-
ministrative judge found that Ms. Duvuvuei’s miscalcula-
tion of the filing deadline was not good cause for an
untimely filing. SAppx 13–14. The administrative judge
also determined that while Ms. Duvuvuei argued that her
illness also caused the untimely filing, Ms. Duvuvuei failed
2 Ms. Duvuvuei refers to this individual as a Union
Steward in her letter to the Board on June 16, 2019, but
later as the Union President in her August 1, 2019, letter
to the Board and in her appeal to this court. SAppx 46;
SAppx 49; Pet. Inf. Br. 1.
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DUVUVUEI v. MSPB 4
to explain how her illness caused a delay in filing.
SAppx 14–15.
On August 5, 2019, Ms. Duvuvuei filed a petition for
review with the Board. SAppx 27; SAppx 49–51. On
June 13, 2024, the Board issued its Final Order denying
the petition for review and affirming the initial decision.
SAppx 1–3.
Ms. Duvuvuei now petitions for judicial review of the
Board’s final order. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, 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); see also Hornseth v. Dep’t of the Navy,
916 F.3d 1369, 1373 (Fed. Cir. 2019). We have stated that
“whether the regulatory time limit for an appeal should be
waived based upon a showing of good cause is a matter
committed to the Board’s discretion and this court will not
substitute its own judgment for that of the Board.” Men-
doza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir.
1992) (citations omitted).
Ms. Duvuvuei does not dispute the Board’s finding that
her appeal was untimely. Thus, the only issue is whether
the Board abused its discretion in finding that she did not
establish good cause for her delay.
The Board’s regulations require Ms. Duvuvuei to show
a “good reason for the delay.” 5 C.F.R. § 1201.22(c). We
have explained that good cause exists and “[d]elay is excus-
able where, under the circumstances, a petitioner exercises
diligence or ordinary prudence.” Mendoza, 966 F.2d at 653
(citation omitted). The burden is on Ms. Duvuvuei to
demonstrate excusable delay. Id. Thus, before the Board,
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DUVUVUEI v. MSPB 5
the burden was on Ms. Duvuvuei to show that she “exer-
cised diligence and ordinary prudence in filing her appeal”
one day late. Id.
To determine whether good cause exists, the Board
considers the circumstances of the case and the relevant
Alonzo factors, including but not limited to: (1) “the length
of the delay;” (2) “whether [the petitioner] was notified of
the time limit or was otherwise aware of it;” (3) “the exist-
ence of circumstances beyond the control of the [petitioner]
which affected [her] ability to comply with the time limits;”
and (4) “circumstances which show that any neglect in-
volved is excusable neglect.” Alonzo v. Dep’t of Air Force,
4 M.S.P.R. 180, 184 (1980).
Ms. Duvuvuei first argues that she relied on the advice
of the Union President and several friends who advised her
that her appeal must be postmarked by June 6, 2019. Pet.
Inf. Br. 1–7;3 SAppx 47–48; SAppx 49. We agree with the
Board’s determination that while the one-day delay was
“minimal,” and Ms. Duvuvuei relied on the incorrect date
provided to her by the Union President and her friends,
Ms. Duvuvuei was aware of the 30-day deadline, and she
did not offer evidence showing that she was prevented by
circumstances that affected her ability to timely file her ap-
peal. SAppx 12–15. Nor did she demonstrate any need to
wait until the alleged last day of the 30-day period to file.
The Board did not abuse its discretion when it determined
that Ms. Duvuvuei’s reliance on the miscalculated final
due date provided to her by the Union President and her
friends did not establish good cause for delay. SAppx 11–
16.
Ms. Duvuvuei also argues that her appeal was un-
timely filed because she “ha[s] been plagued with illnesses,
3 All pagination is based on the ECF pagination. See
ECF No. 21.
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DUVUVUEI v. MSPB 6
since returning from Afghanistan for DFAS,” particularly
with chronic insomnia and tinnitus. SAppx 49–50. How-
ever, Ms. Duvuvuei was informed that to show that an ill-
ness prevented her from timely filing her appeal,
Ms. Duvuvuei would have to show that she “suffered from
the illness during the relevant time period, and [had to] ex-
plain how the illness prevented [her] from filing [the] appeal
on time.” SAppx 14 (emphasis added) (citation omitted).
While Ms. Duvuvuei provided extensive details regarding
her symptoms, diagnoses, and upcoming appointments,
she did not provide evidence demonstrating that her
chronic insomnia, tinnitus, or other illnesses affected her
ability to comply with the appeal deadline. SAppx 47–48;
SAppx 49–51. Nor did Ms. Duvuvuei explain why such ev-
idence was not available. SAppx 14. The Board thus did
not err in concluding that Ms. Duvuvuei failed to address
or provide evidence establishing that her chronic insomnia,
tinnitus, or other illnesses kept her from timely filing her
appeal or requesting an extension, and therefore failed to
show good cause that her illnesses prevented her from
timely filing her appeal. SAppx 14–15. We determine that
the Board did not abuse its discretion when it found that
Ms. Duvuvuei failed to “show due diligence in attempting
to timely file her appeal” or “establish good cause for her
delay.” SAppx 15.
In Ms. Duvuvuei’s opening brief before us, she raised a
new argument, asserting that she was sent to the hospital
for a well-being check on June 5, 2019, rendering her una-
vailable to mail her appeal. Pet. Inf. Br. 5. Ms. Duvuvuei
did not raise this argument before the Board. This court
will not consider issues not previously raised before the
Board. See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668
(Fed. Cir. 1998). Even if not waived, however,
Ms. Duvuvuei did not demonstrate why she was unable to
file prior to the alleged last day of the 30-day period.
We thus affirm the Board’s decision dismissing
Ms. Duvuvuei’s appeal as untimely filed.
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DUVUVUEI v. MSPB 7
CONCLUSION
We have considered Ms. Duvuvuei’s remaining argu-
ments and find them unpersuasive. For the reasons stated
above, we affirm the Board’s decision dismissing
Ms. Duvuvuei’s claims.
AFFIRMED
COSTS
No costs.
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