Cabanayan v. Merit Systems Protection Board , 355 F. App'x 407 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3235
DONATO B. CABANAYAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Donato B. Cabanayan, of San Alejandro, Philippines, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard,
General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3235
DONATO B. CABANAYAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit System Protection Board in SF0831090027-I-1.
__________________________
DECIDED: December 10, 2009
__________________________
Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and KENDALL, District Judge. *
PER CURIAM.
Donato B. Cabanayan (“Cabanayan”) appeals the decision of the Merit Systems
Protection Board (“Board”), which dismissed his appeal as untimely filed. Cabanayan v.
Office of Personnel Management, No. SF-0831-09-0027-1-1 (M.S.P.B. Jan. 12, 2009).
Because we find no basis to overturn the Board’s decision, we affirm.
BACKGROUND
Cabanayan alleges he was a federal employee employed as a driver by “Trans-
Ocean Airlines” on Wake Island for twelve years, ending on February 13, 1978. On
December 13, 1990, the Office of Personnel Management (OPM) issued a
*
The Honorable Virginia M. Kendall, District Judge of the Northern District of
Illinois, sitting by designation.
reconsideration decision affirming its initial decision that Cabanayan was not entitled to
an annuity. In a letter to Cabanayan, OPM wrote that it found no record that
Cabanayan had service performed subject to CSR coverage and concluded that he was
not entitled to annuity benefits. OPM informed Cabanayan that this was its “final
decision.” OPM advised Cabanayan of his right to appeal to the Board, and specifically
“note[d] the twenty-five (25) day limit for filing an appeal.”
Cabanayan wrote to OPM again on June 16, 2008, stating that he desired to
apply for retirement and disability benefits from the “U.S. Government Airforce in Wake
Island, territory of U.S.A. beginning August 12, 1956 up to February 1978.” The letter
did not mention his prior application for retirement benefits.
Before OPM responded to the June 16, 2008 letter, Cabanayan appealed to the
Board. Cabanayan was advised that his appeal contained no evidence that OPM had
issued a reconsideration decision and the Board might not have jurisdiction over his
appeal because such jurisdiction only existed after OPM issued a final decision. The
appellant was asked to respond with documentation showing that OPM had issued a
final decision.
Prior to Cabanayan’s deadline to respond, OPM submitted its file containing the
December 3, 1990 reconsideration decision and stated that Cabanayan’s appeal was
untimely because it was not filed within 30 days of OPM’s reconsideration decision. 1
The agency stated that since its reconsideration decision was issued on December 13,
1
As pointed out by the Board, after the reconsideration decision was issued in
December 1990, OPM’s regulations changed. An appellant previously received 25 days
after the issuance of the reconsideration decision to appeal to the Board, but now
receives 30 days. OPM’s reference to 30 days instead of 25 days does not affect the
outcome of this appeal.
2009-3235 2
1990 and Cabanayan’s appeal was filed on October 14, 2008, Cabanayan’s appeal was
untimely filed and should be dismissed.
On November 18, 2008, the administrative judge issued an Order on Timeliness
in which he noted that Cabanayan’s appeal was late. The judge stated that to show
good cause for the untimely filing of the appeal, Cabanayan must show that he acted
reasonably and with due diligence under the circumstances of his case. The judge also
set out the factors the Board would consider. Cabanayan was provided with 30 days
from the date of the order to respond, but Cabanayan did not respond.
On January 12, 2009, the administrative judge issued an initial decision
dismissing Cabanayan’s appeal as untimely filed because it was past the 25-day time
limit for filing an appeal. The administrative judge noted that Cabanayan failed to
provide any explanation for filing his appeal over 17 years late and determined that
Cabanayan failed to show good cause.
Cabanayan petitioned the Board to review the initial decision. The Board denied
Cabanayan’s petition for review, finding that there was no new, previously unavailable
evidence and that the administrative judge made no error in law or regulation that
affected the outcome. Cabanayan subsequently appealed to this court on August 21,
2009.
DISCUSSION
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
procedures required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.” 5 U.S.C. § 7703(c). This court has recognized that “an
2009-3235 3
administrative agency’s interpretation of its own regulations is entitled to great
deference.” Krizman v. Merit Sys. Prot. Bd., 77 F.3d 434, 439 (Fed. Cir. 1996). A
waiver of a regulatory time limit based on “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). The appellant bears the burden of proof concerning the timeliness of a
required filing. C.F.R. § 1201.56(a)(2)(ii).
The administrative judge considered the evidence, applied the necessary factors,
and determined that Cabanayan failed to meet his burden to show good cause for the
untimely filing of his appeal. The Board’s decision to dismiss the appeal as untimely
filed was in accordance with the law, not an abuse of discretion, and was supported by
substantial evidence.
Cabanayan submitted an application for retirement benefits which was previously
denied by OPM in a reconsideration decision dated December 13, 1990. Based on the
Board’s regulations in 1990, an appeal of an agency reconsideration decision must be
filed within 25 days of the issuance of the decision. 5 C.F.R. § 1201.22(b) (1990).
Thus, Cabanayan needed to file an appeal by January 7, 1991.
Cabanayan instead filed his appeal to the Board on October 2, 2008, some 17
years after the OPM issued its reconsideration decision. The administrative judge noted
that Cabanayan’s appeal appeared to be untimely filed in a November 8, 2008 order on
timeliness. The order explained to Cabanayan the factors the Board would look at to
determine whether he acted reasonably. It further provided Cabanayan with a chance
to show good cause for late filing. Cabanayan did not respond.
2009-3235 4
To determine whether the appellant met his burden for showing good cause, the
Board considers the factors set forth in Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180(1980). See also Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994)
(recognizing the efficacy of the Alonzo factors and applying them to the administrative
judge’s denial of the good cause waiver). These factors include: (1) the length of the
delay; (2) whether the appellant was notified of the time limit or was otherwise aware of
it; (3) the existence of circumstances beyond the control of the appellant which affected
his ability to comply with the time limits; (4) the degree to which negligence by the
appellant has been shown to be present or absent; (5) circumstances which show that
any neglect involved is excusable neglect; (6) a showing of unavoidable casualty or
misfortune; and (7) the extent and nature of the prejudice to the agency which would
result from waiver of the time limit. Alonzo, 4 M.S.P.R. at 184.
Applying the factors to this appeal, a 17-year delay in filing an appeal is a very
substantial delay. Although Cabanayan argues before this court that he “never knew to
file before,” the OPM’s December 13, 1990 reconsideration decision specifically
informed Cabanayan that he had 25 days to file his appeal with the Board. Cabanayan
did not provide any evidence or argument to show the existence of circumstances
beyond his control that prevented him from filing his appeal in a timely manner. Nor did
Cabanayan provide any reason for why his neglect was excusable. Cabanayan also
failed to provide any evidence that he had any misfortune that prevented the timely filing
of his appeal. Cabanayan simply failed to respond to the administrative judge’s order
on timeliness. As the Board has held, “Silence does not constitute a showing of good
2009-3235 5
cause for the delay.” Balagatas v. Office of Personnel Management, 100 M.S.P.R. 187,
189 (2005).
The final factor, “prejudice to the agency,” need not be considered because it is
analyzed only after an appellant has shown good cause for his delay in filing the appeal.
See Bacashihua v. Merit Sys. Prot. Bd., 811 F.2d 1498, 1502 (Fed. Cir. 1987). Here,
none of the other factors weigh in Cabanayan’s favor and he has failed to meet his
burden for showing good cause. Thus, the Board properly dismissed his appeal as
untimely filed.
CONCLUSION
For the reasons stated above, we affirm the Board’s decision.
COSTS
No costs.
2009-3235 6