Aaron v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHAWNTE' L. AARON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3088
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0845-14-0503-I-1.
______________________
Decided: September 14, 2015
______________________
SHAWNTE’ L. AARON, Buckeye, AZ, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, D.C., for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before PROST, Chief Judge, MOORE, and STOLL, Circuit
Judges.
2 AARON v. MSPB
PER CURIAM.
Ms. Shawnte’ Aaron seeks review of a decision of the
Merit Systems Protection Board (“Board”) dismissing her
appeal as untimely filed. As Ms. Aaron fails to demon-
strate that the Board abused its discretion in dismissing
her appeal, we affirm.
BACKGROUND
Ms. Aaron retired from the United States Postal Ser-
vice for disability in August 1997. Shortly thereafter, she
began receiving disability benefits from the Office of
Personnel Management (“OPM”). In September 2013,
OPM learned that Ms. Aaron had also received Social
Security disability benefits since February 2006. OPM
notified Ms. Aaron by letter dated September 23, 2013
that she had been overpaid for the period between 2006
and 2013. The letter explained that the disability pay-
ments from OPM should have been reduced by the
amount Ms. Aaron received under Social Security. Thus,
OPM had overpaid Ms. Aaron by $63,833, which would be
collected by reducing her monthly disability benefits.
Ms. Aaron requested a waiver of the overpayment, which
OPM denied in a reconsideration decision dated April 10,
2014.
OPM’s April 10 reconsideration decision advised
Ms. Aaron that any appeal must be filed with the Board
within 30 days after the date of receipt of the agency’s
decision, that is, by May 16, 2014. On a date uncertain
from the record, Ms. Aaron incorrectly filed her appeal
with OPM rather than the Board. While her appeal
petition was dated May 2, 2014, Ms. Aaron has not pro-
vided detail regarding how or when she submitted it to
OPM. The date on which OPM received the appeal is also
not identified in the record. The record does show, how-
ever, that OPM forwarded Ms. Aaron’s appeal petition to
the Board on July 17, 2014, and it was received by the
Board on July 28. Because Ms. Aaron’s appeal arrived at
AARON v. MSPB 3
the Board outside the 30-day deadline, OPM moved to
dismiss Ms. Aaron’s appeal as untimely filed. The admin-
istrative judge (“AJ”) then issued an order for Ms. Aaron
to show cause why her appeal should not be dismissed as
untimely filed, without a showing of good cause for the
delay. Ms. Aaron did not respond to OPM’s motion or to
the Board’s show-cause order.
The AJ issued an Initial Decision on September 10,
2014, finding that Ms. Aaron “has not proven that she
timely filed her appeal, albeit erroneously, with OPM.”
RA 12. The AJ concluded that the May 2, 2014 date on
her appeal petition did not establish preponderant evi-
dence that she had in fact mailed it prior to the May 16,
2014 appeal deadline. The AJ further found that
Ms. Aaron “provided no explanation for her late filing”
and “failed to establish that good cause exists for her
delay.” Id.
Ms. Aaron filed a petition for review, which the Board
denied, having found no new, previously unavailable
evidence or error of law by the AJ. While her review
petition asserted, through counsel, that the appeal was
mailed on May 2, 2014, it did not include a declaration
from Ms. Aaron detailing her filing of the appeal. The
petition also did not address Ms. Aaron’s failure to re-
spond to the Board’s timeliness order. Thus, the Board
concluded that Ms. Aaron’s petition for review “fail[ed] to
explain how and when she submitted her appeal to OPM”
and “f[e]ll short of the standard of evidence required to
establish that her appeal was timely filed.” RA 5. The
AJ’s Initial Decision therefore became the final decision of
the Board. Ms. Aaron timely appealed to this court, and
we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We must affirm a final decision of the
Board unless it is (1) arbitrary, capricious, an abuse of
4 AARON v. MSPB
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); Stout v. Merit
Sys. Prot. Bd., 389 F.3d 1233, 1237 (Fed. Cir. 2004). We
review the Board’s factual findings concerning timeliness
for substantial evidence. Espenschied v. Merit Sys. Prot.
Bd., 804 F.2d 1233, 1238 (Fed. Cir. 1986). Whether to
waive the time limit “is a matter committed to the Board’s
discretion and this court will not substitute its own judg-
ment for that of the Board.” Mendoza v. Merit Sys. Prot.
Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).
Ms. Aaron bears the burden of proof regarding the timeli-
ness of her appeal. See 5 C.F.R. § 1201.56(b)(2)(i)(B).
When a petitioner files an untimely appeal, she must
show good cause for the delay and that she “exercised due
diligence in attempting to meet the filing deadline.”
Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed.
Cir. 2003); see also 5 C.F.R. § 1201.114(g). When deter-
mining whether a petitioner has shown good cause for an
untimely filing, the Board may consider several factors
such as the length of the delay, whether there was notifi-
cation of the time limit, the reasonableness of the excuse
for the delay, and the circumstances surrounding the
delay. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582
(Fed. Cir. 1994).
In this case, substantial evidence supports the Board’s
finding that the appeal was untimely and that Ms. Aaron
failed to show good cause for her delay. Ms. Aaron never
responded to the AJ’s order to show cause why her appeal
should not be dismissed as untimely filed. We have
previously found that a “failure even to respond to the
administrative judge’s order directing [a petitioner] to ‘file
evidence and argument demonstrating that the appeal
was timely filed or that good cause exists for the delay’
justified the administrative judge’s conclusion that her
appeal was untimely and should be dismissed.” Hubbard
AARON v. MSPB 5
v. Merit Sys. Prot. Bd., 605 F.3d 1363, 1366 (Fed. Cir.
2010). We see no reason to reach a different result here.
On appeal, Ms. Aaron states that she “ha[s] no excuse
other than confusion on my part concerning the process.”
However, we have explained that “an appellant’s confu-
sion regarding Board procedures does not demonstrate
good cause for waiving a filing deadline.” Basu v. Merit
Sys. Prot. Bd., 594 F. App’x 981, 983 (Fed. Cir. 2014), cert.
denied, 135 S. Ct. 2374 (2015). That is particularly so
here where Ms. Aaron did not respond to the show-cause
order or provide a sworn statement explaining the cir-
cumstances under which the appeal was filed.
Under the facts of this case, the Board’s dismissal of
Ms. Aaron’s appeal as untimely was not arbitrary, an
abuse of discretion, or otherwise erroneous under the law.
See Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280,
1282 (Fed. Cir. 2011) (explaining that a petitioner “bears
a ‘heavy burden’ to overturn the Board’s determination
that good cause has not been shown for her untimely
filing” (quoting Zamot, 332 F.3d at 1377)).
CONCLUSION
Accordingly, we affirm the Board’s decision dismissing
Ms. Aaron’s appeal as untimely filed without good cause
shown.
AFFIRMED
COSTS
Each party shall bear their own.