MacNeill v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS J. MACNEILL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3175
______________________
Petition for review of the Merit Systems Protection
Board in No. DA0752110587-I-1.
______________________
Decided: April 10, 2013
______________________
DOUGLAS J. MACNEILL, of Salem, New Hampshire, 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.
______________________
2 DOUGLAS MACNEILL v. MSPB
Before RADER, Chief Judge, O’MALLEY, and WALLACH,
Circuit Judges.
PER CURIAM.
Mr. Douglas J. MacNeill appeals from a Merit Sys-
tems Protection Board’s (“Board”) decision dismissing his
appeal as untimely. Because substantial evidence sup-
ports a finding of Mr. Macneill’s failure to show good
cause for the delay in filing his appeal, the Board’s deci-
sion is affirmed.
BACKGROUND
Mr. MacNeill was employed by the Department of the
Air Force (“agency”) as a Logistics Management Specialist
at Tinker Air Force Base, Oklahoma. On January 21,
2009, the agency proposed to remove Mr. MacNeill from
his position for refusing to submit to an urinalysis test,
and on February 20, 2009, the agency informed him of his
removal effective February 25, 2009. The decision letter
informed Mr. MacNeill that he could file an appeal of the
agency’s decision within thirty days from the effective
date of the decision. Mr. MacNeill’s appeal was filed on
July 22, 2011, more than two years or 847 days after the
deadline for filing his appeal.
On August 1 and October 5, 2011, the administrative
judge issued orders directing Mr. MacNeill to file evidence
and argument showing that his appeal was timely filed or
that good cause existed for the delay. Based on Mr.
MacNeill’s and the agency’s responses to these orders, on
November 22, 2011, the administrative judge issued an
initial decision dismissing the appeal as untimely filed.
MacNeill v. Dep’t of the Air Force, No. DA-0752-11-0587-I-
1, slip op. at 1 (M.S.P.B. November 22, 2011) (“Initial
Decision”). Mr. MacNeill petitioned the full Board to
review the Initial Decision. On June 18, 2012, the full
Board adopted the Initial Decision finding no error on the
part of the administrative judge. MacNeill v. Dep’t of the
DOUGLAS MACNEILL v. MSPB 3
Air Force, No. DA-0752-11-0587-I-1, slip op. at 3 (M.S.P.B.
June, 28, 2012) (“Final Decision”). Mr. MacNeill’s petition
to this court followed. This court has jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
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). “Whether the
regulatory time limit for an appeal of an agency action
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.” Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581
(Fed. Cir. 1994) (citation and internal quotations marks
omitted).
Here, the administrative judge applied the standards
set forth in Alonzo v. Dep’t of Air Force, 4 M.S.P.R. 180,
184 (1980), and dismissed Mr. MacNeill’s appeal because
it was untimely filed without good cause. The Board
subsequently denied Mr. MacNeill’s petition for review
because it found that the administrative judge did not
commit legal error that affected the outcome of the case
and because Mr. MacNeill did not present any new,
previously unavailable, evidence after the record was
closed. 5 C.F.R. § 1201.115(b). This court finds no error in
these decisions.
In particular, Mr. MacNeill had the burden of proving
by a preponderance of the evidence that his appeal was
timely before the Board. 5 C.F.R. § 1201.56(a)(2)(ii). It is
uncontroverted that Mr. MacNeill’s appeal was not time-
ly. See 5 C.F.R. § 1201.22(b)(1) (“[A]n appeal must be filed
no later than 30 days after the effective date, if any, of the
4 DOUGLAS MACNEILL v. MSPB
action being appealed, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is
later.”). As the Board ordered, Mr. MacNeill had to show
good cause why his appeal was filed more than two years
after the effective date of his removal. Alonzo, 4 M.S.P.R.
at 184. 1
Responding to the Board’s order to show cause, Mr.
MacNeill provided, in relevant part, that his delay in
filing the appeal was the result of: “1) adverse influence;
2) harassment and stalking occurring from an unknown
source in, on, and around a military installation; 3) de-
ployment of esoteric systems and technologies against his
person; and 4) perceived experimentation and politics at
the workplace that extended into his personal off-duty
environment.” Initial Decision at 2–3. The administrative
judge did not find evidence supporting Mr. MacNeill’s
assertions. For example, it was found that there was no
evidence indicating that the agency in some fashion
prevented him from filing a timely appeal nor did he show
that he was, for instance, ill during the 847 days before
filing this appeal. The administrative judge found no
1 “[F]actors for consideration . . . in deciding whether
to waive the 20-day limitation should include . . . the
length of the delay; whether appellant was notified of the
time limit or was otherwise aware of it; the existence of
circumstances beyond the control 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 present or absent; circumstances which show
that any neglect involved is excusable neglect; a showing
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, 4 M.S.P.R. at 184
(internal footnotes omitted). The efficacy of these factors
has been recognized by this court. Walls, 29 F.3d at 1582.
DOUGLAS MACNEILL v. MSPB 5
basis supporting a showing of good cause as to the “signif-
icant” 847-day delay. Id. at 6.
The full Board on petition for review agreed with the
Initial Decision and adopted its findings as the Final
Decision. The Board further stated that there was no
delay in the issuance of the decision that affected Mr.
MacNeill’s rights. Final Decision at 2.
This decision is supported by the record. Mr. Mac-
Neill does not provide substantive evidence as to why he
was 847 days late in filing his appeal to the Board. Bare
assertions alleging that he was prevented from filing a
timely appeal cannot suffice. As a result, the Board’s
decision here is left undisturbed because the Board rea-
sonably exercised its discretion to determine whether the
requirements for waiver of the time limits on appeals
have been met. See Phillips v. United States Postal Serv.,
695 F.2d 1389, 1390 (Fed. Cir. 1982).
AFFIRMED
No Costs.