NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3221
RAYMON L. CROOK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Raymon L. Crook, of Orlando, Florida, pro se.
Stephanie M. Conley, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Calvin M. Morrow, Acting Assistant General Counsel for
Litigation.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3221
RAYMON L. CROOK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board
in AT0752071004-I-1.
___________________________
DECIDED: December 8, 2008
___________________________
Before RADER, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Raymon L. Crook challenges the decision of the Merit Systems Protection Board
dismissing his petition for review as untimely filed. We affirm.
BACKGROUND
Mr. Crook was a mail handler and truck driver for the United States Postal
Service in Orlando, Florida. The Postal Service terminated Mr. Crook during his
probationary period in 1997 for making false statements in his employment application.
Mr. Crook then took an appeal to the Merit Systems Protection Board, challenging his
removal and the Postal Service’s 2007 decision not to reinstate him. The administrative
judge who was assigned to his case found that Mr. Crook did not have the right to
appeal to the Board and therefore dismissed his appeal for lack of jurisdiction. The
initial decision stated that it would become the Board’s final decision on December 11,
2007, unless Mr. Crook filed a petition for review with the full Board by that date.
On January 9, 2008, Mr. Crook filed a petition for review with the full Board in
which he explained that he had mistakenly believed he had 60 days to file the petition.
Mr. Crook stated in his petition that he had called the office of the clerk of the Board on
January 7, 2008, and was advised that he could still submit his petition for review. In a
letter dated January 10, 2008, the clerk’s office notified Mr. Crook that his petition was
untimely but that he could submit a motion seeking to have the untimeliness excused for
good cause shown. Mr. Crook filed a motion in response to that notice, but the Board
denied the motion and dismissed his petition for review as untimely. Mr. Crook then
petitioned for review by this court.
DISCUSSION
Board regulations provide that a petition for review of an initial decision must be
filed within 35 days after issuance of the initial decision or, if the petitioner shows that he
received the initial decision more than five days after its issuance, within 30 days of
receipt of the initial decision. 5 C.F.R. § 1201.114(d). The Board can waive the time
limit if the petitioner shows good cause for the delay. Id. § 1201.114(e). To establish
good cause, the petitioner must demonstrate that he exercised due diligence or ordinary
2008-3221 2
prudence under the circumstances. Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391
(Fed. Cir. 1982). Whether a regulatory time limit should be excused for 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).
Because the initial decision was issued on November 6, 2007, Mr. Crook’s
petition for review—which he filed on January 9, 2008—was approximately one month
late. Mr. Crook does not dispute that his petition was untimely, but he argues that the
Board should have waived the filing deadline. Mr. Crook points out that the initial
decision indicated that final decisions of the Board must be appealed to this court within
60 days, and he contends that because of that reference to a 60-day period, he was
confused as to the proper deadline to petition the Board for review of the initial decision.
The initial decision, however, explicitly informed Mr. Crook that it would become final on
December 11, 2007, unless he petitioned the full Board for review by that date. The
Board acknowledged that Mr. Crook was acting pro se, but declined to find good cause
for his late filing in light of the initial decision’s clear articulation of the time limit and Mr.
Crook’s significant one-month delay in filing. We see no reason to disturb the Board’s
determination that Mr. Crook failed to show that he exercised due diligence justifying
waiver of the filing deadline.
Although Mr. Crook asserts that he called the clerk’s office at the Board and
contends that he was informed by a representative there that he had 60 days in which
to petition the Board for review, he admits that his conversation with a Board
representative did not occur until January 7, 2008, which was nearly a month after the
2008-3221 3
filing deadline had passed. Thus, the Board correctly concluded that any
misinformation that may have been provided to Mr. Crook by the clerk’s office cannot
have contributed to his failure to file a timely petition for review.
Mr. Crook also contends that the Board failed to take into account his
misapprehension of the direction in the initial decision not to “submit anything to the
Board that is already part of the record” when filing a petition for review. He argues that
it was the apparent conflict between that language and the instruction from the clerk’s
office that he could still submit his petition that caused his untimely filing. Again,
however, any confusion stemming from a conversation that took place after the filing
deadline had expired cannot constitute good cause for the untimeliness of his petition.
Even aside from the discussion with the clerk’s office, the language in the initial decision
regarding duplicative submissions does not excuse Mr. Crook’s delay because the
decision clearly indicated that a petition must be filed with the Board and indicated the
date by which the petition would have to be filed.
Finally, Mr. Crook states that he filed a petition for review online through the
Board’s electronic filing system but that he cannot provide documentation to that effect.
It is unclear whether Mr. Crook is claiming that he in fact filed electronically prior to the
deadline. However, Mr. Crook failed to assert before the Board that he timely filed
online, and he cannot present that argument for the first time on appeal. We also
cannot address Mr. Crook’s argument that he was wrongly terminated, because that
issue has no bearing on whether he timely filed his petition for review. In determining
whether Mr. Crook exercised due diligence excusing his delay, the Board properly
considered the length of the delay, the fact that he was clearly notified of the time limit,
2008-3221 4
the existence of circumstances affecting his ability to comply with the deadline, as well
as Mr. Crook’s pro se status. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581
(Fed. Cir. 1994). We find no abuse of discretion in the Board’s decision that Mr. Crook
failed to show good cause for his untimely filing, and we therefore affirm the dismissal of
his appeal on that ground.
2008-3221 5