Perry v. Merit Systems Protection Board ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SHERWANDA L. PERRY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3119
__________________________
Petition for review of the Merit Systems Protection
Board in CH0831090853-I-1.
__________________________
Decided: October 13, 2010
__________________________
SHERWANDA L. PERRY, of St. Louis, Missouri, pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
PERRY v. MSPB 2
Before LOURIE, LINN, and PROST, Circuit Judges.
PER CURIAM.
Sherwanda L. Perry (“Perry”) appeals from a final de-
cision of the Merit Systems Protection Board (“Board”)
dismissing her appeal as untimely filed. Perry v. Office of
Pers. Mgmt., No. CH-0831090853-I-1 (Mar. 18, 2010)
(final order denying petition for review). For the reasons
discussed below, we affirm.
BACKGROUND
Perry filed an application for death benefits with the
Office of Personnel Management (“OPM”) on May 19,
2008. Perry claimed entitlement to a survivor annuity as
the former spouse of a United States Postal Service
employee who was covered by the Federal Employee’s
Retirement System. OPM denied Perry’s application on
September 23, 2008. OPM subsequently denied her
request for reconsideration on January 8, 2009, and
informed her of her right to appeal to the Board “within
30 calendar days after the date of this decision, or 30 days
after receipt of this decision, whichever is later.” Perry
received the reconsideration decision on January 16,
2009.
Perry filed an appeal with the Board on August 14,
2009. On October 30, 2009, the administrative judge
(“AJ”) issued an initial decision dismissing her appeal as
untimely filed. Perry v. Office of Pers. Mgmt., No. CH-
0831090853-I-1 (Oct. 30, 2009). In reaching this conclu-
sion, the AJ found that Perry’s appeal from OPM should
have been filed by February 15, 2009, 1 thirty days after
her receipt of the decision and nearly six months prior to
1 Given that February 15, 2009, was a Sunday,
the deadline for filing was February 16, 2009, the first
workday after that date. See 5 C.F.R. § 1201.23.
3 PERRY v. MSPB
the date she filed her appeal. The AJ determined that
Perry “failed to establish good cause for her untimely filed
appeal.”
On March 18, 2010, the Board denied Perry’s petition
for review and the decision became final. Perry appeals
from the Board’s final decision. This Court has jurisdic-
tion of her appeal under 28 U.S.C. § 1295(a)(9).
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 proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). The waiver of a regulatory time limit
based on a showing of good cause “is a matter committed
to the Board’s discretion and [we] will not substitute [our]
own judgment for that of the Board.” Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc).
The Board observed, correctly, that a petitioner’s de-
lay in filing is excusable where the petitioner has exer-
cised due diligence or ordinary prudence under the
circumstances. Id. at 653. The petitioner bears the
burden of demonstrating excusable delay. Id. The Board
therefore required Perry to prove facts showing that she
exercised due diligence or ordinary prudence in filing her
appeal nearly six months after the February 16, 2009,
time limit.
Substantial evidence supports the Board’s conclusion
that Perry did not meet this burden. In her appeal to the
Board, Perry explained that she “just recently located
[her] files” and that her appeal was delayed because OPM
gave her an incorrect address for filing an appeal with the
PERRY v. MSPB 4
Board. Perry claims that her appeal, filed in August
2009, was actually her second appeal; she claims to have
mailed her first appeal to the incorrect address. Perry did
not, however, substantiate either the fact that she re-
ceived an incorrect address from OPM or that she had
“mailed [her first appeal] within the 30 days stated,” as
she claims. The requirement to establish good cause
cannot be satisfied by argument alone, and, here, Perry
failed to furnish any probative evidence to support her
contentions. Substantial evidence thus supports the
Board’s conclusion that Perry failed to establish good
cause for her nearly six-month delay in filing her appeal
from OPM’s decision, and the Board did not abuse its
discretion by refusing to waive the regulatory time limit
for Perry’s appeal.
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.