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
05-3016
GARY D. SMITH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: July 8, 2005
__________________________
Before MAYER, RADER, and LINN, Circuit Judges.
PER CURIAM.
Gary D. Smith appeals the decision of the Merit Systems Protection Board, which
dismissed his petition for review as untimely. Smith v. United States Postal Serv.,
DC3443030826-I-1 (MSPB Aug. 18, 2004). Because the board did not abuse its
discretion by refusing to excuse Smith’s untimely filing, we affirm.
Smith’s complaint alleged that the United States Postal Service changed his
assignment without accommodating his disability. The complaint was dismissed based
on Smith’s submission that he was abandoning the complaint because he had not
received a reduction in pay or grade. The administrative judge informed Smith that this
decision would become final unless appealed to the board by November 19, 2003.
Smith, proceeding pro se, appealed the decision in February 2004, well outside
the 35-day window prescribed by 5 C.F.R. § 1201.114(d). In an attempt to excuse the
delay, Smith alleged that his health had precluded his timely filing; he failed, however, to
submit documentation that corroborated this assertion. The board, after considering the
length of his delay, his unsupported excuse, his lack of due diligence, his pro se status,
and the possible existence of circumstances beyond his control, refused to extend the
filing deadline and dismissed Smith’s appeal as untimely. We discern no error in this
decision. See Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003)
(“[T]he waiver of a regulatory time limit based on a showing of good cause ‘is a matter
committed to the Board’s discretion and that this court will not substitute its own
judgment for that of the Board.’” (quoting Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc))).
05-3016 2