NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3036
FRANK E. CAIN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: September 7, 2006
__________________________
Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and ELLIS,* District Judge.
PER CURIAM.
DECISION
Petitioner Frank E. Cain appeals from a September 26, 2005 decision of the
Merit Systems Protection Board (“Board”), Docket No. AT-083-04-0538-B-1, dismissing
his case as untimely filed. Because it is undisputed that petitioner's appeal was
untimely and we find that the Board did not abuse its discretion in declining to waive the
30-day filing deadline set forth in 5 C.F.R. § 1201.22(b), we affirm.
*
Honorable T.S. Ellis, III, District Judge, United States District Court for the
Eastern District of Virginia, sitting by designation.
BACKGROUND
On November 19, 2003, the Office of Personnel Management ("OPM") issued a
decision informing petitioner that his annuity would be recomputed to eliminate credit for
post-1956 military service because he failed to pay a service credit deposit prior to
retirement. Petitioner was expressly notified of his right to appeal to the Board within 30
calendar days after the date of the decision or 30 days after receipt of the decision,
whichever was later. In March 2004, petitioner wrote to OPM, but on April 9, 2004, his
request for reconsideration was denied as untimely under 5 C.F.R. § 831.109(e)(1).
On April 19, 2004, petitioner filed an appeal at the Board. On April 29, 2004,
OPM moved to dismiss the appeal as untimely. Petitioner responded by letter dated
May 26, 2004, stating that he was suffering from depression or other psychiatric illness,
that he was a recovering alcoholic and that he was going blind.
On August 24, 2004, the administrative judge ("AJ") issued an initial decision
dismissing the appeal as untimely filed. Although a timely filing mistakenly addressed to
OPM could substitute for a filing with the Board, petitioner's March 2004 letter—which
was deemed a misdirected filing—had not been filed within the 30-day time limit set
forth in 5 C.F.R. § 1201.22(b). The AJ declined to waive the filing deadline because
petitioner's proffered evidence did not demonstrate that any medical condition had
interfered with his ability to file a timely appeal.
On April 29, 2005, petitioner's request for further review was denied.
Nonetheless, because the AJ had not informed petitioner of the specific criteria he
needed to meet in order to establish good cause for his untimely filing on the basis of
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physical or mental illness, the Board reopened the appeal on its own motion, vacated
the initial decision and remanded for further proceedings.
In accordance with the Board's instructions, the AJ issued an order on May 11,
2005, providing petitioner an opportunity to establish good cause for his untimely filing.
Petitioner responded with further evidence regarding his alleged medical conditions.
On September 26, 2005, the AJ issued another initial decision, again dismissing
petitioner's appeal as untimely filed. The AJ found that none of the additional medical
evidence established that any physical or mental condition prevented him from filing a
timely appeal, as petitioner had told his doctors that he started getting sick after
Christmas, i.e., after his filing deadline had already passed. This decision became final
on November 15, 2005, when petitioner withdrew his request for further Board review.
We now have jurisdiction pursuant to 28 U.S.C. 1295(a)(9).
DISCUSSION
Pursuant to 5 C.F.R. § 1201.22(b), "an appeal must be filed no later than 30 days
after the effective date, if any, of the action being appealed, or 30 days after the date of
receipt of the agency's decision, whichever is later." We have held 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 v. Merit Sys. Prot. Bd., 966 F.2d 650,
653 (Fed. Cir. 1992) (en banc).
Petitioner does not dispute that his appeal was not filed within the deadline set
forth in 5 C.F.R. § 1201.22(b), but alleges that various medical reasons prevented him
from doing so. To establish good cause on the grounds of mental or physical illness, a
06-3036 3
petitioner must (1) identify the time period during which he suffered from the illness;
(2) submit supporting medical evidence; and (3) explain how the alleged medical
condition prevented him from timely filing an appeal or requesting an extension of time.
Lacy v. Dep't of the Navy, 78 M.S.P.R. 434, 437 (1998).
Here, the AJ did not abuse his discretion in concluding that petitioner failed to
meet this burden. Petitioner's proffered medical evidence did not demonstrate that he
suffered from any illness during the relevant time period, i.e., the 30-day window after
the November 19, 2003 OPM decision or his receipt thereof. Moreover, he did not
attempt to explain how any of his alleged medical conditions interfered with his ability to
timely file his appeal or request an extension of time. We must therefore affirm the
Board's decision.
06-3036 4