Lush v. Merit Systems Protection Board ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIAM STEPHEN LUSH, II
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3131
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT3330090169-I-1.
__________________________
Decided: May 14, 2012
__________________________
WILLIAM STEPHEN LUSH, II, of Middleton, Wisconsin,
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 JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
LUSH v. MSPB 2
Before NEWMAN, CLEVENGER, and WALLACH, Circuit
Judges.
CLEVENGER, Circuit Judge.
The petitioner, William Stephen Lush, II petitions for
review of the final order of the Merit Systems Protection
Board (“Board”) dismissing his petition for review as
untimely filed. Lush v. Dep’t of the Treasury, No. AT-
3330-09-0169-I-1, 2011 MSPB LEXIS 1517 (M.S.P.B. Mar.
10, 2011). Since we find no error in the Board’s decision,
we affirm.
I
Mr. Lush was terminated from his position as a Data
Transcriber at the Wage and Income Center for the Inter-
nal Revenue Service in Atlanta, Georgia. On August 19,
2008, Mr. Lush filed an appeal challenging the agency’s
termination decision, and the agency submitted evidence
that Mr. Lush was terminated during his probationary
period. As a result, the administrative judge found that
Mr. Lush’s termination was not within the Board’s juris-
diction and dismissed his appeal. Lush v. Dep’t of the
Treasury, No. AT-0752-08-0778-I-1, slip op. (M.S.P.B.
Sept. 30, 2008).
Mr. Lush appealed the administrative judge’s initial
decision to the Board. Although the Board denied Mr.
Lush’s petition for review, it determined that in Mr.
Lush’s submission below, he appeared to have raised
claims under the Uniformed Services Employment and
Reemployment Rights Act of 1995 (“USERRA”) and the
Veterans Employment Opportunities Act of 1998
(“VEOA”) that were not addressed by the administrative
judge. Therefore, the Board remanded these matters to
the Atlanta Regional Office for docketing and adjudication
3 LUSH v. MSPB
as new appeals. Lush v. Dep’t of the Treasury, No. AT-
0752-08-0778-I-1, slip op. (M.S.P.B. Dec. 4, 2008).
On March 10, 2009, the administrative judge issued
an order notifying Mr. Lush that there was a question of
whether the VEOA appeal was within the Board’s juris-
diction; this order set out the criteria for establishing
jurisdiction under the VEOA. 1 In response to this order,
Mr. Lush submitted a declaration of jurisdiction and
proof, in which he claimed to have sent a letter to the
Department of Labor (“DOL”) as part of an administrative
exhaustion process.. In its response, the agency denied
violating Mr. Lush’s veterans preference rights. The
agency also submitted a letter from the DOL regional
administrator, who stated that the DOL had never re-
ceived a complaint from Mr. Lush.
On March 31, 2009, the administrative judge issued
an initial decision finding that Mr. Lush failed to provide
any evidence that DOL ever received his complaint. Lush
v. Dep’t of the Treasury, No. AT-3330-09-0169-I-1, 2009
MSPB LEXIS 1943 (M.S.P.B. Mar. 31, 2009). Since
exhaustion of the DOL complaint process is a jurisdic-
tional prerequisite to pursuit of a Board appeal under the
VEOA, the administrative judge dismissed Mr. Lush’s
appeal for lack of jurisdiction. The initial decision became
the final decision of the Board on May 5, 2009, and Mr.
1 The administrative judge issued a similar order in
Mr. Lush’s USERRA appeal. Mr. Lush failed to respond,
and the administrative judge issued an initial decision
dismissing the USERRA appeal for lack of jurisdiction.
Lush v. Dep’t of the Treasury, No. AT-4324-09-6165-I-1,
2009 MSPB LEXIS 2048 (M.S.P.B. Apr. 1, 2009). The
initial decision became the final decision of the Board on
May 6, 2009. Mr. Lush did not petition the Board for
review of the administrative judge’s April 1, 2009, deci-
sion.
LUSH v. MSPB 4
Lush did not seek review of that decision in this court.
On August 6, 2010, more than one year after the decision
became final, Mr. Lush petitioned the Board for review of
the March 31, 2009, initial decision.
In September 2010, Mr. Lush filed a motion to accept
his filing as timely or, in the alternative, to waive or set
aside the time limit. In this motion, Mr. Lush asserted
that he had been mentally ill since 2002 and that he did
not request an extension of time to file a petition for
review because he did not know that he could ask for
another review. In October 2010, Mr. Lush sent the
Board a letter, to which he attached medical records
regarding his mental illness.
On March 10, 2011, the Board dismissed Mr. Lush’s
petition for review as untimely filed without a showing of
good cause for the delay. Lush, 2011 MSPB LEXIS 1517.
The Board found that the administrative judge’s initial
decision informed Mr. Lush that the decision would
become final on May 5, 2009. The Board noted that the
Clerk, after receiving Mr. Lush’s petition for review,
informed Mr. Lush that his petition may be dismissed as
untimely unless he filed a motion or affidavit showing
that his petition for review was timely filed or that good
cause existed for the delay. Additionally, the Board noted
that the Clerk informed Mr. Lush what he needed to show
in order to establish good cause based on medical reasons.
As to the medical evidence, which the Board considered
even though Mr. Lush submitted it after the record had
closed, the Board stated that it did not explain how his
mental illness prevented him from timely filing his peti-
tion for review. Thus, the Board dismissed Mr. Lush’s
petition for review as untimely filed without a showing of
good cause for the delay.
5 LUSH v. MSPB
Mr. Lush timely petitioned this court for review of the
Board’s dismissal order. We have jurisdiction over ap-
peals from final decisions of the Board. 28 U.S.C.
§ 1295(a)(4). Our task is to determine whether the
Board’s decision was arbitrary, capricious, an abuse of
discretion, not in accordance with the law, or unsupported
by substantial evidence. 5 U.S.C. § 7703(c); Sandel v.
Office of Pers. Mgmt., 28 F.3d 1184, 1186 (Fed. Cir. 1994).
If not, then we must affirm the final ruling of the Board.
II
On appeal, Mr. Lush argues that the Board should not
have dismissed his petition for review as untimely filed.
Mr. Lush had the burden of proof by preponderance of
the evidence concerning the timeliness of his petition for
review. 5 C.F.R. § 1201.56(a)(2)(ii). 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 five days after the date
of issuance, then within 30 days after the date the peti-
tioner received the initial decision. 5 C.F.R. §
1201.114(d). In this case, the administrative judge made
these deadlines and the importance of compliance with
them known to Mr. Lush.
In considering whether Mr. Lush showed good cause
for his untimely petition for review, the Board considered
several factors, including the length of Mr. Lush’s delay,
the reasonableness of his excuse, his pro se filing status,
and the medical evidence he presented. This was in
accordance with this court’s precedent. See Walls v. Merit
Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). When
considering the medical evidence, the Board considered
whether the medical evidence showed the existence of a
condition that would affect his ability to comply with time
limits. This court has also reviewed the medical evidence,
LUSH v. MSPB 6
and we agree with the Board that it is insufficient to
excuse his untimely filing of a petition for review. Mr.
Lush has not met his burden to establish good cause for a
delay, and substantial evidence supports the Board’s
decision not to waive the filing deadline.
III
For the reasons discussed above, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.