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Comer v. Merit Systems Protection Board

U.S. Court of Appeals, Federal Circuit


January 13, 1999

LEROY K. COMER, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.

Rich, Circuit Judge, Friedman, Senior Circuit Judge, and Schall, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Decision

Leroy K. Comer appeals from a decision of the Merit Systems Protection Board (MSPB or Board), No. DA-0752-96-0051-I-1, affirming the dismissal of Mr. Comer's appeal. We affirm on the basis of the Board's opinion.

Background

The Board dismissed Mr. Comer's petition for review as being untimely filed, where Mr. Comer did not submit the petition for more than 20 months after the initial decision became final. In determining that Mr. Comer failed to show good cause for the untimely filing, the Board considered the length of the delay, the reasonableness of Mr. Comer's excuse and his showing of due diligence, his pro se status, whether Mr. Comer presented evidence of circumstances beyond his control that affected his ability to comply with the time limits, and whether Mr. Comer showed good cause for not seeking an extension in advance of the filing date.

Discussion

We affirm a Board decision unless it is (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. Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1581-82 (Fed. Cir. 1994). Where the Board's opinion fully explained the reasons for denying Mr. Comer's petition for review as untimely, and specifically addressed the factors that we have identified as bearing on that determination, we cannot say that the Board abused its discretion in so ruling.

19990113


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