Case: 23-1144 Document: 23 Page: 1 Filed: 07/19/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANNY J. NEESE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1144
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0845-15-0316-I-1.
______________________
Decided: July 19, 2023
______________________
DANNY J. NEESE, Coram, NY, pro se.
ELIZABETH W. FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, CLEVENGER and CHEN,
Circuit Judges.
Case: 23-1144 Document: 23 Page: 2 Filed: 07/19/2023
2 NEESE v. MSPB
PER CURIAM.
Danny J. Neese appeals a decision of the Merit Systems
Protection Board (Board) dismissing his petition for review
as untimely. For the following reasons, we affirm.
BACKGROUND
Mr. Neese has received disability benefits since 2013.
S. Appx. 11–13. The Office of Personnel Management
(OPM) determined Mr. Neese had been overpaid $8,299 in
disability retirement benefits and set a repayment sched-
ule of 165 monthly installments of $50 and one final install-
ment of $49. S. Appx. 34–37. Mr. Neese appealed this
decision to the Board. On September 26, 2016, the admin-
istrative judge (AJ) issued an initial decision affirming
OPM’s determination that Mr. Neese had been overpaid
but adjusting the repayment schedule. S. Appx. 10–20.
The initial decision notified Mr. Neese that if he wanted
the full Board to review the decision, then he must file a
petition for review by October 31, 2016. S. Appx. 21.
Mr. Neese filed a petition for review on December 5,
2016, thirty-five days after the deadline. S. Appx. 51–53.
The Board thus considered whether Mr. Neese’s delay was
excusable for good cause. Mr. Neese asserted his petition
was untimely because he had been experiencing certain
medical issues. He submitted medical statements showing
he visited the emergency room on June 20, September 12,
and October 6, 2016 due to psychological issues. S. Appx.
52, 56, 69, 74–75. He also submitted a copy of a report from
his primary care physician dated December 6, 2016, iden-
tifying several diagnoses including anxiety, recurrent ma-
jor depressive disorder, and insomnia. S. Appx. 71–73.
The Board considered these submissions and found Mr.
Neese failed to explain how his medical conditions pre-
vented him from timely filing his petition for review.
S. Appx. 3–4. Because Mr. Neese did not demonstrate good
cause for his delay, the Board dismissed the petition for re-
view as untimely. S. Appx. 4. Mr. Neese appeals. We have
Case: 23-1144 Document: 23 Page: 3 Filed: 07/19/2023
NEESE v. MSPB 3
jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and
5 U.S.C.
§ 7703(b)(1)(A).
DISCUSSION
A petitioner must file a petition for review “within 35
days after the date of 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(e). The Board may waive this time
limit upon a showing of good cause.
5 C.F.R.
§§ 1201.113(d), 1201.114(g). To establish good cause, the
petitioner “must show that he exercised diligence or ordi-
nary prudence under the particular circumstances of the
case.” Olivares v. Merit Sys. Prot. Bd.,
17 F.3d 386, 388
(Fed. Cir. 1994) (citation omitted). “[W]hether the regula-
tory time limit for an appeal 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.” Mendoza v. Merit Sys.
Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). We
will affirm the Board’s decision to dismiss an untimely pe-
tition for review unless such decision is arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with the law.
5 U.S.C. § 7703(c).
The Board did not abuse its discretion in determining
Mr. Neese failed to meet his burden to demonstrate good
cause for his delay. The Board considered that Mr. Neese
had been in the emergency room on June 20, September 12,
and October 6, 2016, but found Mr. Neese failed to explain
how any of these visits prevented him from timely filing his
petition. S. Appx. 3. The visits on June 20 and September
12, 2016 predated the issuance of the September 26, 2016
initial decision.
Id. And Mr. Neese did not explain how the
one-day emergency room visit on October 6 prevented him
from filing his petition on or before the October 31 deadline.
Id. The Board also considered that Mr. Neese had been
Case: 23-1144 Document: 23 Page: 4 Filed: 07/19/2023
4 NEESE v. MSPB
diagnosed with several mental health conditions but again
found he failed to explain how these conditions prevented
him from filing his petition. S. Appx. 4; see Ford-Clifton v.
Dep’t of Veterans Affs.,
661 F.3d 655, 659 (Fed. Cir. 2011)
(“[W]hen petitioners allege delay for medical reasons, they
must affirmatively identify medical evidence that ad-
dresses the entire period of delay and explain how the ill-
ness prevented a timely filing.”).
On appeal, Mr. Neese argues the Board failed to con-
sider his lack of intent to file late and his pro se status, but
these factors alone do not demonstrate good cause. Mr.
Neese also argues the Board’s decision was wrong because
“[it] waited six years to make a final decision” on his peti-
tion while it lacked a quorum. Appellant’s Informal Open-
ing Br. at 3. While unfortunate, the Board’s delay does not
demonstrate good cause for Mr. Neese’s delay. On the facts
of this case, we cannot say the Board’s dismissal of Mr.
Neese’s untimely petition was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the
law. 1 We therefore affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
1 Mr. Neese also makes several arguments challeng-
ing the merits of OPM’s underlying decision. See Appel-
lant’s Informal Opening Br. at 3; Appellant’s Informal
Reply Br. at 2. We cannot consider these arguments be-
cause they are beyond the limited scope of this appeal. See
Olivares,
17 F.3d at 388. The only issue presented on ap-
peal is whether the Board properly dismissed the untimely
petition.
