NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3014
ALEXANDER GARCIA-RIVERA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Elaine Rodriguez-Frank, of San Juan, Puerto Rico, for petitioner.
Jeffrey A. Gauger, Acting Associate General Counsel for Litigation, Office of the
General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent.
With him on the brief was B. Chad Bungard, General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2009-3014
ALEXANDER GARCIA-RIVERA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in
NY0752080161-I-1.
__________________________
DECIDED: July 13, 2009
__________________________
Before MICHEL, Chief Judge, NEWMAN, and DYK, Circuit Judges.
PER CURIAM.
Alexander Garcia-Rivera appeals the dismissal by the Merit Systems Protection
Board ("MSPB") of his appeal as untimely. For the reasons that follow, we affirm.
I. BACKGROUND
Garcia-Rivera worked as a housekeeping aide for the Department of Veterans
Affairs ("VA"). Beginning in 2005, the VA began disciplining him for being absent from
work. Garcia-Rivera acknowledged a history of substance abuse problems, including
an arrest in 2006 that led to his referral to a treatment program. During 2007, he
continued using illegal drugs, resulting in incarceration, hospitalization, and further
referrals to substance-abuse treatment programs.
By a letter dated January 16, 2008, the VA removed Garcia-Rivera from his
position effective January 20, 2008, for "Unexcused Tardiness," "Failure to Comply with
Work Schedule," "Inability Failure to Follow Leave Requesting Procedures," and
"Unauthorized Absence (AWOL)." This letter included a statement that any "appeal
must be filed anytime during the period beginning with the day after the effective date of
the removal action but not later than 30-calendar days after the effective date."
Garcia-Rivera signed the letter, acknowledging that he received it, on January 19, 2008.
Thirty-four days later, Garcia-Rivera, acting through counsel, appealed his
removal. An administrative judge of the MSPB ordered Garcia-Rivera to show cause
why his appeal should not be dismissed as untimely. Garcia-Rivera filed a response in
which he recounted his troubles from substance abuse in 2006 and 2007, as well as
April 2008. Garcia-Rivera did not, however, explain why he was unable to file an appeal
during January and February 2008.
The administrative judge noted that Garcia-Rivera failed to produce any evidence
that illness or drug addiction prevented him from filing his appeal in a timely fashion,
and ruled that Garcia-Rivera had "failed to establish good cause for the waiver of
untimeliness." Garcia-Rivera petitioned for review of this decision, which the MSPB
summarily denied. Garcia-Rivera thereafter appealed to this court.
II. DISCUSSION
The thirty-day time limit for filing an appeal with the MSPB is set forth in 5 C.F.R.
§ 1201.22(b)(1). Under § 1201.22(c), "If a party does not submit an appeal within the
2009-3014 2
time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed
unless a good reason for the delay is shown. The judge will provide the party an
opportunity to show why the appeal should not be dismissed as untimely." "[W]hether
the regulatory time limit for an appeal should be waived based upon a showing of good
cause is a matter committed to the [MSPB]'s discretion and this court will not substitute
its own judgment for that of the [MSPB]." Mendoza v. MSPB, 966 F.2d 650, 653 (Fed.
Cir. 1992) (en banc). "On appeal, we will disturb the grant or denial of such a waiver
only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law." Id. A petitioner bears the burden of showing excusable delay. Id.
On appeal, Garcia-Rivera argues that (1) his minimal four-day delay in filing
should be easily excused, (2) his lack of awareness of the filing deadline should excuse
his late filing, and (3) "[a]t the time not only his health was compromised but also his
personal liberty." None of these arguments shows that the MSPB abused its discretion.
The MSPB discussed the fact that Garcia-Rivera's appeal was late by only four
days, but noted that would not excuse even a short delay "in the absence of good
cause." The MSPB discussed the facts that Garcia-Rivera claimed excused his late
filing, but these were all events from 2006 and 2007 or April 2008. The MSPB stated
that Garcia-Rivera did not provide "a clear explanation regarding the failure to timely file
his Board appeal, or seek an extension of time." We can discern no reversible error in
the MSPB's decision on this point.
As the government points out on appeal, Garcia-Rivera did not initially argue to
the MSPB that he was unaware of the thirty-day time limit for appealing. As Garcia-
Rivera waived this argument below, we need not consider it on appeal.
2009-3014 3
Lastly, despite Garcia-Rivera's statement on appeal that he was unable to file an
appeal because his health and "personal liberty" were compromised, none of the
evidence he presented to the MSPB shows that he had a health problem in January or
February of 2008 that would have prevented him from filing an appeal, nor is there any
indication that he was incarcerated or otherwise detained during this period. Garcia-
Rivera presented evidence of problems both before and after this period, but because of
his conspicuous failure to address the thirty-day period between when his removal took
effect and when his time to appeal expired, we cannot say the MSPB erred in not
excusing his untimely filing.
CONCLUSION
For the reasons stated above, we affirm the MSPB's decision that Garcia-Rivera
did not show a sufficient excuse for his failure to appeal his removal in a timely fashion.
COSTS
No costs.
2009-3014 4