United States Court of Appeals for the Federal Circuit
November 17, 1999
EVELYN M. GATLING,
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.
Before Michel, Circuit Judge, Skelton, Senior Circuit Judge, and Schall,
The opinion of the court was delivered by: Per Curiam.
Evelyn M. Gatling petitions for review of the final decision of the Merit Systems Protection Board (Board) that dismissed as untimely her appeal of her removal by the Department of the Army (agency). See Gatling v. Merit Sys. Protection Bd., No. DC-0752-98-0546-I-1. The August 26, 1998 initial decision of the administrative Judge (AJ) became the final decision of the Board on February 5, 1999, when the Board denied Ms. Gatling's petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115 (1999). We affirm.
The agency removed Ms. Gatling from her position of Employee Services Clerk effective June 8, 1990. The notice of removal informed Ms. Gatling that she had the right to appeal to the Board and stated that "[a]ny such petition for appeal must be filed within 20 days after the effective date of this action." *fn1 The notice included the applicable Board regulations and an appeal form. Ms. Gatling did not appeal her removal until May 22, 1998, however.
In due course, the AJ ordered Ms. Gatling to "file evidence and argument showing that [her] appeal was timely filed or that good cause existed for the delay." Ms. Gatling failed to respond to the order, and on August 26, 1998, the AJ dismissed the appeal as untimely.
In her initial decision, the AJ noted that the Board will waive the time limit for filing an appeal if the appellant establishes good cause for the delay. See 5 C.F.R. § 1201.22(c) (1998). The AJ determined that Ms. Gatling's filing delay of seven years and ten months was excessive, that Ms. Gatling had been clearly informed of her right to appeal and the time within which an appeal had to be filed, and that Ms. Gatling had failed to provide any explanation for her delay.
"[W]hether 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." Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (1992) (in banc). On appeal, we will not disturb the denial of a waiver of the time limit for filing an appeal unless we conclude that the Board's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 7703(c) (1999); Mendoza, 966 F.2d at 653. Before the Board, Ms. Gatling bore the burden of proving the facts necessary to establish good cause for her delay. Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982).
Factors to be considered in determining whether good cause exists for waiving the regulatory time limit include, but are not limited to:
the length of the delay; whether appellant was notified of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency which would result from waiver of the time limit. Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980)).
In this case, we see no error in the Board's decision. The AJ weighed the Alonzo factors and determined that Ms. Gatling had failed to meet her burden of demonstrating good cause for her untimely filing. As the AJ noted, a delay of seven years and ten months is excessive. In addition, Ms. Gatling was provided with instructions upon her removal as to how and when to file an appeal. Moreover, the AJ informed Ms. Gatling of her burden with respect to the issue of timeliness and specifically ordered her to "file evidence and argument" showing good cause. Yet, she failed to respond.
Ms. Gatling argues that the Board should have considered the fact that she apparently suffers from memory loss. Ms. Gatling, however, never raised this issue before the AJ, and again, she did not respond to the AJ's order requesting evidence of good cause for her delay. Under these circumstances, we are not prepared to disturb the Board's decision not to waive the regulatory time limit. See Cheguna v. Merit Sys. Protection Bd., 69 F.3d 1143, 1147 (Fed. Cir. 1995) (affirming the Board's dismissal of an appeal as untimely when the petitioner failed to file any evidence on the issue of good cause).
For the foregoing reasons, the final decision of the Board dismissing Ms. Gatling's appeal as untimely is affirmed.
Each party shall bear its own costs.