Cox v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD COX,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3186
______________________
Petition for review of the Merit Systems Protection
Board in No. AT844E131600-I-1.
______________________
Decided: February 7, 2014
______________________
RICHARD COX, of Clinton, Tennessee, pro se.
SCOTT SLATER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and CLAUDIA
BURKE, Assistant Director.
______________________
Before DYK, PROST, and MOORE, Circuit Judges.
2 COX v. OPM
PER CURIAM.
Richard Cox appeals a decision of the Merit Systems
Protection Board (“Board”), dismissing as untimely his
appeal of the Office of Personal Management’s (“OPM”)
denial of his disability retirement application. We affirm.
BACKGROUND
Mr. Cox applied for disability retirement on the
grounds that he could not perform the duties of his posi-
tion as an Equal Opportunity Specialist due to various
medical conditions. On September 26, 2011, the OPM
issued its determination that Mr. Cox did not meet five of
the seven requisite criteria and therefore was ineligible
for disability retirement. Mr. Cox requested reconsidera-
tion, after which the OPM concluded that its initial deci-
sion was correct.
The OPM’s reconsideration decision, dated January 9,
2012, informed Mr. Cox that he had a right to appeal to
the Board, and 30 days to exercise that right. Mr. Cox
states that he received the OPM decision on January 9,
2012, the date of the OPM decision. The decision stated
that the 30-day period would run from either the date of
the Board’s decision or Mr. Cox’s receipt thereof, whichev-
er came later. On July 25, 2013, Mr. Cox appealed the
OPM decision to the Board. Based on the fact that Mr.
Cox filed the appeal more than 500 days after the date of
the OPM’s reconsideration decision and failed to show
good cause for extending the filing time limit, the Board
dismissed the appeal as untimely filed.
Mr. Cox appealed the Board’s decision to this court.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We may only review cases involving disability retire-
ment “to determine whether ‘there has been a substantial
departure from important procedural rights, a miscon-
COX v. OPM 3
struction of the governing legislation, or some like error
going to the heart of the administrative determination.’”
Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985)
(quoting Scroggins v. United States, 397 F.2d 295, 297
(Ct. Cl. 1968) (internal quotation marks omitted)). Accord-
ingly, we may not review the factual underpinnings of
disability determinations. Id. We have held that the
question of “whether the regulatory 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).
The only issue before us is whether the Board erred in
dismissing Mr. Cox’s appeal as untimely. Mr. Cox con-
tends that he filed his appeal after the time limit due to
circumstances beyond his control, including difficulties
associated with medical conditions. He states that he
suffers from post-traumatic stress disorder, degenerative
joint disease, chronic Lyme disease, nerve pain, and
peripheral artery disease.
The relevant regulations require an appeal to be filed
within 30 days of the effective date of the Board’s decision
or the appellant’s receipt of that decision, whichever is
later. 5 C.F.R. § 1201.22(b). If an appeal is not filed within
the statutory time limit, it will be dismissed as untimely
“unless a good reason for the delay is shown.” Id.§ 1201.22(c). Although the Board’s regulations do not
define specific criteria for good cause, factors for consider-
ation include:
the length of the delay; whether appellant was no-
tified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the con-
trol of the appellant which affected his ability to
comply with the time limits; the degree to which
negligence by the appellant has been shown to be
4 COX v. OPM
present or absent; circumstances which show that
any neglect involved is excusable neglect; a show-
ing of unavoidable casualty or misfortune; and the
extent and nature of the prejudice to the agency
which would result from waiver of the time limit.
Alonzo v. Dep’t of Air Force, 4 M.S.P.R. 180, 184 (1980)
(footnotes omitted); see also Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1582 (Fed. Cir. 1994) (quoting Alonzo, 4
M.S.P.R. at 184). Here, the Board issued a Timeliness
Order on August 14, 2013, giving Mr. Cox the opportunity
to establish good cause for his untimely filing. The Order
explained that Mr. Cox could establish such cause by
showing that he exercised due diligence in filing the
appeal or that he suffered from an illness that affected his
ability to file on time.
In his response to the Board’s Order, Mr. Cox asserted
that good cause existed because (1) decisions from gov-
ernment agencies (specifically, the Social Security Admin-
istration and Department of Veterans Affairs) concerning
other disability retirement appeals had not issued within
the 30-day time limit; (2) counseling for post-traumatic
stress disorder took up a substantial amount of time; and
(3) significant medical problems affected his ability to
concentrate.
In determining whether to waive the time limit re-
quirement, the Board recognized that Mr. Cox suffered
from “significant medical problems affecting his concen-
tration.” J.A. 25. The Board also considered the length of
the 500-day delay as well as the fact that Mr. Cox was
able to pursue appeals with other government agencies
during that time, notwithstanding his medical problems.
The Board also noted that Mr. Cox acknowledged contact-
ing attorneys about his disability issues in June 2013, and
that he waited to file his appeal even though one attorney
had advised him to file an appeal with the Board. Based
on these considerations, the Board found that circum-
COX v. OPM 5
stances beyond Mr. Cox’s control did not prevent him from
timely filing his appeal or requesting an extension of
time.
On appeal, Mr. Cox contends that the Board failed to
take account of the reasons for the untimeliness of his
appeal—his disabling medical conditions and the timing
of other agency decisions. But the Board’s decision reflects
consideration of these factual allegations. Mr. Cox’s
appeal does not contend that the Board applied the wrong
law. He effectively requests that we substitute our judg-
ment for that of the Board with respect to the weighing of
the relevant considerations. Because Mr. Cox has not
established any abuse of discretion by the Board, we
affirm.
AFFIRMED
No costs.