Stoglin v. Merit Systems Protection Board , 633 F. App'x 788 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COREY DEMOND STOGLIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3141
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-12-0389-M-1.
______________________
Decided: January 15, 2016
______________________
COREY DEMOND STOGLIN, Minneapolis, MN, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before NEWMAN, PLAGER, and REYNA, Circuit Judges.
2 STOGLIN v. MSPB
PER CURIAM.
Mr. Corey D. Stoglin seeks review of the Merit Sys-
tems Protection Board’s (“Board”) final order dismissing
his petition for review as untimely filed and without a
showing of good cause for delay.
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c) (2012).
The petitioner bears the burden of establishing error
in the Board’s decision. Vassallo v. Dep’t of Defense, 797
F.3d 1327, 1330 (Fed. Cir. 2015). We review the Board’s
legal determinations without deference. Id. However,
“‘whether the regulatory time limit for an appeal [of an
agency action] 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.’” Walls v. Merit Sys. Prot. Bd., 29 F.3d
1578, 1581 (Fed. Cir. 1994) (citation omitted). We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
We find no reversible error in the Board’s decision.
First, the Board did not err in its analysis of the
Servicemembers Civil Relief Act of 2003, Pub. L. No. 108-
189, 117 Stat. 2835 (2003) (“SCRA”). The SCRA tolls
certain time periods provided certain conditions—
including “military service”—are met. See 50 U.S.C. app.
§ 526(a). Service may constitute “military service” under
either 50 U.S.C. app. § 511(2)(A)(i) or (ii).
Under subsection (i), the Board properly determined
that only Mr. Stoglin’s thirteen-day service period poten-
tially qualified as “military service,” and that, even if that
were true, Mr. Stoglin’s seventeen day late filing would
still have been untimely. See 50 U.S.C. app.
STOGLIN v. MSPB 3
§ 511(2)(A)(i); 10 U.S.C. § 101(d)(1). Furthermore, the
Board also properly determined that Mr. Stoglin’s other
period of service did not qualify as “military service”
because it was for full time National Guard duty. See 50
U.S.C. app. § 511(2)(A)(i); 10 U.S.C. §§ 101(d)(1),(5).
Under subsection (ii), the Board properly determined that
neither of Mr. Stoglin’s two periods of service constituted
“military service” because neither period lasted more than
thirty consecutive days. See 50 U.S.C. app. § 511(2)(A)(ii).
Second, the Board did not err in determining that Mr.
Stoglin failed to establish good cause to excuse the un-
timely filing. Mr. Stoglin does not raise any meritorious
argument regarding this issue. In these matters, we “‘will
not substitute [our] own judgment for that of the Board.’”
Walls, 29 F.3d at 1581 (citation omitted).
For the foregoing reasons, we affirm the decision of
the Board. 1
AFFIRMED
1 Petitioner’s reply brief was filed late. Under the
circumstances, the court considered the brief and finds
nothing in it to affect our decision.