Raleigh v. Merit Systems Protection Board , 328 F. App'x 639 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3039
FRANCES A. RALEIGH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Frances A. Raleigh, of LaMarque, Texas, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Jeffrey A. Gauger, Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3039
FRANCES A. RALEIGH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DA-0752-08-0108-I-1.
__________________________
DECIDED: March 31, 2009
__________________________
Before MAYER, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Frances A. Raleigh seeks review of the final decision of the Merit Systems
Protection Board, which (1) denied Raleigh’s motion to waive the time limit for her
petition for review and/or accept her filing as timely, and (2) dismissed her petition for
review as untimely filed with no showing of good cause for the delay. Raleigh v. Dep’t
of Veterans Affairs, No. DA-0752-08-0108-I-1 (M.S.P.B. Sept. 9, 2008). We affirm.
We must affirm the final decision of the board unless we conclude that it is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
5 U.S.C. § 7703(c). Raleigh’s appeal stems from her removal by the Department of
Veterans Affairs from a position as a GS-303-4 Clerk in a Clinical Practice Office. In its
initial decision, the board held that Raleigh’s appeal of the agency’s removal action was
untimely by more than 7 months, and she failed to show good cause for the delay. The
board also provided Raleigh with written instructions for filing a petition for review of this
initial decision, and notification that the deadline for filing the petition would be due by
March 26, 2008. Raleigh was again untimely, filing her petition for review on May 12,
2008.
A petition for review must be filed within 35 days after the issuance of the initial
decision or, if the petitioner shows that the initial decision was received more than 5
days after the date of issuance, within 30 days after the date the petitioner received the
initial decision. 5 C.F.R. § 1201.114(d). If a party does not submit an appeal within this
time period, it will be dismissed as untimely filed unless good cause for the delay is
shown. Id. § 1201.114(f). To establish good cause for a filing delay a petitioner must
show that the delay was excusable under the circumstances and that he exercised due
diligence in attempting to meet the filing deadline. Zamot v. Merit Sys. Prot. Bd., 332
F.3d 1374, 1377 (Fed. Cir. 2003).
Raleigh claimed that she delayed filing her petition for review because she was
undergoing treatment for depression and awaiting proper medical documentation of her
depressive disorder, and she did not request a filing extension due to her mental
instability and medication. In reaching its decision, the board properly considered the
length of the delay, the reasonableness of her excuse, her pro se status, and whether
the evidence presented revealed uncontrollable circumstances affecting her ability to
comply with the time limits. The board found that Raleigh failed to establish a justifiable
2009-3039 2
excuse for her untimely filing, because (1) she did not explain her delay in obtaining
medical documentation of her depression, (2) the letter she submitted from her
psychiatrist failed to adequately explain how her illness prevented her from timely filing
the petition for review or requesting an extension, (3) she failed to identify the duration
of her illness, and (4) she submitted no documentation to support her claim that she
was impaired by medication during the time period between the issuance of the initial
decision and the filing of her petition for review. Substantial evidence supports the
board’s determination that Raleigh failed to show that under the circumstances she
exercised due diligence or ordinary prudence sufficient to establish good cause for her
untimely filing.
2009-3039 3