Edwards v. Merit Systems Protection Board , 610 F. App'x 991 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES EDWARDS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3020
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-13-0303-I-1.
______________________
Decided: April 14, 2015
______________________
CHARLES EDWARDS, Seattle, WA, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before PROST, Chief Judge, BRYSON, and HUGHES, Circuit
Judges.
2 EDWARDS v. MSPB
PER CURIAM.
After untimely submitting his petition for review of
the Merit Systems Protection Board’s initial decision,
Charles D. Edwards asked the Board to waive its timely
filing requirement for good cause. The Board denied
Mr. Edwards’s request, finding that he did not show that
the new evidence he submitted was sufficient to change
the outcome, or that a medical condition prevented him
from timely filing. Because the Board’s decision was not
an abuse of discretion, we affirm.
I
The Department of the Navy terminated Mr. Edwards
from his position, and he appealed to the Merit Systems
Protection Board. On June 21, 2013, Mr. Edwards and
the Department agreed to mediate his appeal through the
Board’s Mediation Appeals Program. During mediation,
the parties entered into a settlement agreement, which
was forwarded to the Administrative Judge assigned to
Mr. Edwards’s appeal. On August 19, 2013, the Board
issued an initial decision dismissing Mr. Edwards’s ap-
peal due to the settlement agreement. In its Notice of
Decision, the Board informed Mr. Edwards that he had
until September 23, 2013 to file a petition for review of
the Board’s initial decision.
On November 4, 2013—over seventy days after issu-
ance of the initial decision—Mr. Edwards filed a petition
for review of the Board’s initial decision. On November
25, 2013, the Board acknowledged receipt of the petition
for review, and stated that the petition was untimely.
The Board issued a deadline of December 10, 2013 for
Mr. Edwards to file a motion to accept the filing as timely
or to waive the time limit.
On December 3, 2013, Mr. Edwards filed a motion to
waive his December 10, 2013 deadline. This motion
stated that Mr. Edwards was “requesting time for the
EDWARDS v. MSPB 3
lawyers [to] look over the paperwork.” Resp’t’s Appendix
at 53.
On December 17, 2013, Mr. Edwards filed a motion to
waive the September 23, 2013 deadline for a petition to
review the initial decision. Even though the deadline to
submit such a motion was December 10, 2013, because of
Mr. Edwards’s December 3, 2013 motion, the Board
accepted the motion as timely in a December 18, 2013
order.
On August 27, 2014, the Board denied the motion.
The Board held that Mr. Edwards did not show why the
new evidence he submitted after the initial decision
warranted an outcome different from the initial decision.
The Board also found that although Mr. Edwards had
included some medical evidence in his motions to waive
the time limit, it did not show why Mr. Edwards’s medical
problems prevented him from timely filing.
Mr. Edwards appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
Our review of Board decisions is limited. See 5 U.S.C.
§ 7703(c). We cannot reverse a Board’s decision unless it
is (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law; (2) obtained
without procedures required by law, rule or regulation
having been followed; or (3) unsupported by substantial
evidence. Id.A petition for review of an administrative judge’s de-
cision must be filed with the Board within 35 days.
5 C.F.R. § 1201.114(e). The Board has discretion to waive
this requirement if a party requests waiver and shows
good cause. 5 C.F.R. §§ 1201.12 and 1201.114(f), (g).
Petitioners seeking a waiver must file “[a] specific and
detailed description of the circumstances causing the late
filing, accompanied by supporting documentation or other
4 EDWARDS v. MSPB
evidence.” Ford-Clifton v. Dep’t of Veterans Affairs, 661
F.3d 655, 659 (Fed. Cir. 2011) (citation omitted).
When considering a motion to waive the timely filing
requirement for good cause, the Board considers the
length of the delay, the appellant’s notice of the time
limit, the existence of circumstances beyond the appel-
lant’s control, the appellant’s negligence, any excusable
neglect, unavoidable casualty or misfortune, and the
extent and nature of prejudice to the agency. Walls v.
Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994)
(citation omitted). “[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. Prot. Bd., 966
F.2d 650, 653 (Fed. Cir. 1992) (en banc). Accordingly, an
appellant bears a “heavy burden” to overturn the Board’s
determination that good cause has not been shown for an
untimely filing. Turman-Kent v. Merit Sys. Prot. Bd., 657
F.3d 1280, 1282 (Fed. Cir. 2011) (internal quotation
omitted).
Mr. Edwards first asserts that the Board’s December
18, 2013 order already accepted his petition for review as
timely filed. However, he misunderstands the Board’s
order. The Board did not find that the petition for review
was timely filed, but, rather, that the motion to waive the
time limit for filing the petition was timely filed.
We also find no error in the Board’s finding that
Mr. Edwards did not show good cause. While he did
submit new evidence after the initial decision, he does not
explain how this new evidence would change the outcome.
Thus, the Board did not abuse its discretion in finding
that the new evidence did not justify Mr. Edwards’s
untimely filing. See Armstrong v. Dep’t of Treasury, 591
F.3d 1358, 1362 (Fed. Cir. 2010) (“[W]e cannot say that it
was wrong for the MSPB to consider whether [the peti-
EDWARDS v. MSPB 5
tioner’s] new evidence was of sufficient weight to warrant
a different outcome from that of the initial decision.”)
(internal quotation omitted).
Additionally, substantial evidence supports the
Board’s finding that Mr. Edwards’s medical evidence does
not show good cause for the delay, because it does not
show that he was ill throughout the entire period of delay
or that this illness prevented him from timely filing. See
Ford-Clifton, 661 F.3d at 659 (affirming the Board’s
denial of a motion to waive the timely filing requirement
where the petition did not “affirmatively identify medical
evidence that addresses the entire period of delay and
explain how the illness prevented a timely filing”). One of
the medical documents is dated June 26, 2013, and does
not implicate the relevant delay period. And although the
other is dated during the relevant time period, it actually
suggests that Mr. Edwards was healthy and able to
timely file a petition.
We have considered Mr. Edwards’s other arguments
and find them unpersuasive. Accordingly, we conclude
that Mr. Edwards has not met his heavy burden of show-
ing reversible error in the Board’s decision not to waive
the timely filing requirement.
AFFIRMED
No costs.