NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3293
GREGORY A. LYONS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Gregory A. Lyons, of Torrance, California, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3293
GREGORY A. LYONS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
____________________________
DECIDED: December 10, 2007
____________________________
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Gregory A. Lyons appeals from the decision of the Merit Systems Protection
Board (“the Board”) dismissing as untimely his appeal from a fifteen-day suspension.
Lyons v. Dep’t of Veterans Affairs, SF-0752-05-0929-I-3 (M.S.P.B. July 20, 2007) (initial
decision dated Jan. 18, 2006). Because the Board did not abuse its discretion in
reaching its decision, we affirm.
BACKGROUND
Lyons held the position of food service worker at the Department of Veterans
Affairs (“DVA”). He was suspended for fifteen days, effective July 31, 2005, based on
charges of inappropriate and disrespectful conduct, failure to be forthcoming in an
investigation, and violation of the terms of his administrative leave. The Board’s
Western Regional Office received an appeal notice from Lyons dated August 25, 2005,
on August 31, 2005, one day after the thirty-day window for appeal. On November 9,
2005, an administrative judge (“AJ”) at the Board’s Denver Field Office dismissed the
appeal for administrative reasons, subject to being refiled by January 11, 2006. The
appeal was reinstated on January 3, 2006, and then dismissed without prejudice again
by another AJ on September 8, 2006. It was later refiled.
Upon review of the record, a newly-assigned AJ found that, based on Lyons’
receipt of the suspension notice, Lyons’ appeal appeared to have been filed one day
late and, on January 4, 2007, issued an order to show cause why the appeal should not
be dismissed for untimeliness. The order noted that during the time that Lyons’ appeal
was pending, the DVA had canceled the suspension and informed the Board that it
would provide Lyons with back pay and benefits; however, outstanding claims remained
that could have led to an award of damages, thus leaving the issues not fully resolved.
Lyons filed a response on January 6, 2007, stating that the DVA required him to obtain
permission to enter its property at the peril of further disciplinary action, but that the
office of his union representative was located on DVA property. Consequently, he
stated that he was unable to meet with his union representative until August 19, 2005,
and was unable to complete his appeal until he was allowed a second meeting with the
union representative on August 31, 2005. On January 7, 2007, Lyons filed an amended
response repeating that the DVA controlled when he was able to meet with his union
representative regarding his appeal.
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On January 18, 2007, the AJ issued an Initial Decision concluding that Lyons had
failed to show good cause for his untimely appeal. The AJ noted that Lyons had chosen
to rely on the union representative to aid him in filing his appeal and that an error by his
representative in determining the time for appeal was not good cause for delay. The AJ
also found that Lyons had failed to explain why the appeal could not have been filed
following his initial meeting with the union representative on August 19, 2005. Finally,
the AJ found that Lyons could have met with the union representative at an alternate
location or filed the appeal himself.
On July 20, 2007, the Board denied Lyons’ petition for review because it found
no new, previously unavailable evidence or error of law by the AJ. See 5 C.F.R. §
1201.115. The AJ’s initial decision thus became the final decision of the Board. See 5
C.F.R. § 1201.113. Lyons timely appealed to this court, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, Lyons states that the DVA threatened him with arrest and further
disciplinary action if he entered DVA property without prior permission. Lyons argues
that the DVA’s improper interference with his access to his union representative and his
own inability to understand the running of the thirty-day window for appeal establish
good cause for filing his appeal one day late. Lyons adds that the DVA has failed to
demonstrate that it would have suffered any prejudice from accepting an appeal one
day out of time and that the DVA actually had accepted the filing up until the time that
the AJ raised the issue of timeliness sua sponte. The government responds that the
Board has broad discretion in applying the good cause standard for waiver of the
2007-3293 -3-
timeliness requirement. The government argues that Lyons has failed to explain why
his appeal could not have been filed after his initial meeting with the union
representative on August 19, 2005, and why he could not have arranged to meet his
representative at an alternate location. The government also argues that prejudice to
an agency is only considered after good cause for the delay has been demonstrated,
which did not occur here.
The scope of our review in an appeal from a Board decision is limited. We must
affirm the Board’s decision unless 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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
We conclude that the Board did not abuse its discretion in finding Lyons’ appeal
to be untimely. We have stated that “[d]elay is excusable where, under the
circumstances, a petitioner exercises diligence or ordinary prudence.” Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Some of the specific
factors we have found useful to consider are: “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.” Walls v.
2007-3293 -4-
Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). “We have often stated that
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, 966 F.2d at 653.
Under the circumstances of this case, we cannot say that the Board abused its
discretion in finding that Lyons failed to exercise diligence and ordinary prudence.
While the possibility that the DVA may have restricted Lyons’ access to his chosen
representative for this appeal was an inconvenience, the fact remains that Lyons was
able to meet with his union representative prior to the deadline for filing his appeal.
Although the AJ relied on this fact and the government argued this point in its brief to
this court, Lyons fails to explain why his appeal could not have been filed at that time,
as he had previously been able to contact his union representative by telephone. Lyons
also fails to explain why it was error for the AJ to have found that a reasonably prudent
person would have made arrangements to meet his union representative off DVA
grounds if necessary. “The burden is on the petitioner to demonstrate excusable delay.”
Id. Given our substantial deference to the Board on timeliness issues, we conclude that
the Board did not abuse its discretion in concluding that Lyons failed to meet his burden.
Because the Board did not abuse its discretion in concluding there was no good
cause for delay in the filing of Lyons’ appeal, and its decision is supported by substantial
evidence, we affirm its decision.
2007-3293 -5-