Before Rich, Clevenger, and Rader, Circuit Judges.
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.
Aiko Williams petitions for review of a final decision of the Merit Systems Protection Board (Board), Docket No. SF844E980201-I-1, dismissing Williams' appeal as untimely filed. Because Ms. Williams has not demonstrated that the Board abused its discretion in dismissing her appeal, we affirm.
In October 1995, Ms. Williams filed an application for disability retirement benefits. On February 26, 1996, the Office of Personnel Management (OPM) rendered a final decision denying Ms. Williams' application and mailed a certified letter to Ms. Williams informing her of the final decision. The letter stated that any appeal from the final decision must be filed within 35 days of the date of the letter. A receipt for the certified letter was signed on March 1, 1996 and returned to the OPM. Ms. Williams asserts that she never received the letter and someone unknown to her must have signed her name on the return receipt. In September 1997, Ms. Williams contacted the OPM to discuss the status of her case and the OPM informed her that her application was denied. The OPM sent Ms. Williams another copy of the letter that was originally mailed in February 1996. It is undisputed that Ms. Williams received the second letter in September 1997.
On December 18, 1997, nearly three months after receipt of the second letter, Ms. Williams filed an appeal with the Board. The Administrative Judge (AJ) dismissed the appeal as untimely filed, reasoning that even if Ms. Williams did not receive OPM's February 26, 1996 letter until September 1997, the appeal was still untimely since it was not filed within 35 days of receipt of the letter. The AJ further found that Williams did not establish good cause for the late filing. Upon the full Board's denial of Williams' petition for review, the AJ's decision became final. This appeal followed.
To be timely, an appeal must be filed within thirty five days of the date of the OPM's final decision. See 5 C.F.R. § 1201.22(b) (1997). The Board has the power to waive this requirement if the petitioner establishes good cause for the delayed filing. See 5 C.F.R. § 1201.22(c) (1998). To establish good cause, the petitioner must show that the delay was excusable under the circumstances and that diligence and ordinary prudence had been exercised. See Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982). 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. See Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (in banc). This court must affirm the Board's decision unless Ms. Williams establishes that the Board's decision 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. See 5 U.S.C. § 7703(c) (1994). See also Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581-82 (Fed. Cir. 1994).
On appeal to this court, Ms. Williams argues that there was good cause for her appeal being untimely filed, namely that she (1) never received the first letter sent in February 1996 and (2) was in Florida from September 1997 to December 1997 where her grandchild was hospitalized.
Even if we conclude that Ms. Williams did not receive the first letter, we cannot say that the Board abused its discretion in refusing to excuse the late filing. The letter informing Ms. Williams of the final decision by the Office of Personnel Management clearly states that Ms. Williams had thirty five days from the date of the letter to file an appeal with the Board. When Ms. Williams received the second letter, she was on notice of the time limits for filing. Generally, family difficulties do not constitute good cause for a waiver of the filing time. See Moorman v. Department of Army, 68 M.S.P.R. 60 (1995). Here Ms. Williams has not explained how hospitalization of her grandchild prevented her from filing her appeal with the Board for nearly three months. Given the short thirty five ...