Rocha v. Merit Systems Protection Board
2012 U.S. App. LEXIS 15289
| Fed. Cir. | 2012Background
- Rocha, an FCIP intern, worked as a passport specialist for State Department (2008–2010).
- Rocha’s July 9, 2010 notice stated his appointment would expire July 16, 2010 and would not convert to competitive service.
- Appointment expired; Rocha appealed to MSPB and was initially deemed to have no jurisdiction under FCIP terms.
- Initial decision (Nov. 10, 2010) held MSPB lacked jurisdiction because FCIP interns do not have a right to MSPB appeal until competitive conversion.
- Rocha filed petition for review on June 3, 2011, which the MSPB dismissed as untimely absent good cause.
- Board affirmed untimeliness, citing Rocha’s e-filing consent and duty to monitor electronic docket; concluded no adverse action jurisdiction under FCIP and 5 U.S.C. § 7512.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB properly deemed Rocha’s petition untimely. | Rocha claimed lack of notice; sought good cause to justify delay. | Board acted within discretion; Rocha failed to show due diligence. | Yes; MSPB did not abuse discretion; delay not excused. |
| Whether Rocha’s FCIP termination was an adverse action subject to MSPB review. | His FCIP termination was an appealable adverse action. | FCIP interns’ terminations upon expiration are not adverse actions. | Not an adverse action; MSPB lacked jurisdiction even if timely. |
| Whether Rocha’s non-receipt of initial decision entitled relief under good cause. | Rocha did not receive the initial decision; merits relief possible. | As an e-filer, Rocha was presumed to have received electronic service. | No good cause shown; failure to monitor does not warrant waiver. |
Key Cases Cited
- Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650 (Fed. Cir. 1992) (good cause for late filing; board discretion allowed)
- Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374 (Fed. Cir. 2003) (good cause factors for late filing; substantial discretion)
- Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578 (Fed. Cir. 1994) (delays and diligence considerations in good cause)
- Phillips v. U.S. Postal Serv., 695 F.2d 1389 (Fed. Cir. 1982) (delay not excused without adequate explanation)
- Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (MSPB jurisdiction limited to statutorily conferred actions)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir. 1995) (jurisdictional limits under MSPB authority)
- Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386 (Fed. Cir. 1994) (board docket control broad discretion)