NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROSALYN C. WILLIAMS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3110
______________________
Petition for review of the Merit Systems Protection
Board in No. NY844E130101-I-1.
______________________
Decided: November 12, 2013
______________________
ROSALYN C. WILLIAMS, of Brooklyn, New York, pro se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before RADER, Chief Judge, LINN, and WALLACH, Circuit
Judges.
2 WILLIAMS v. SHINSEKI
PER CURIAM.
Rosalyn C. Williams petitions for review of the deci-
sion of the Merit Systems Protection Board (“Board”)
dismissing her appeal as untimely filed. Williams v. Office
of Pers. Mgmt., MSPB Docket No. NY-844E-13-0101-I-1
(Initial Decision, April 9, 2013). This court affirms.
BACKGROUND
Ms. Williams formerly worked as a Medical Techni-
cian with the Department of Veterans Affairs (“the agen-
cy”). She was separated from the agency on August 9,
2007. Over three and a half years later, on May 13, 2011,
Ms. Williams submitted an application for disability
retirement benefits with the Office of Personnel Manage-
ment (“OPM”). 1 Ms. Williams’s disability claim was based
on an August 2003 car accident that Ms. Williams alleged
caused her severe and permanent disabilities. OPM
denied Ms. William’s application on the ground that it
was not filed within one year of her separation from the
agency, as required by 5 U.S.C. § 8453 (2006) (providing a
disability claim may be allowed “only if [the] application
is filed with [OPM] before the employee or Member is
separated from the service or within 1 year thereafter,”
unless the applicant was mentally incompetent during the
filing period). OPM denied Ms. Williams’s request for
reconsideration, finding she was not mentally incompe-
tent at the time of her separation, and did not become
mentally incompetent during the one-year filing period.
OPM issued a final reconsideration decision denying Ms.
Williams’s application for disability benefits, which Ms.
Williams received on December 14, 2012.
1 Ms. Williams signed the application on September
3, 2010, and claims that she sent the application to OPM
on September 18, 2010.
WILLIAMS v. SHINSEKI 3
Ms. Williams appealed OPM’s denial to the Board on
January 31, 2013, forty-seven days after she received
OPM’s decision. On February 12, 2013, the Administra-
tive Judge (“AJ”) issued an order informing Ms. Williams
that her appeal was filed after the thirty-day filing dead-
line. It explained that Ms. Williams bore the burden to
prove her Board appeal had been timely filed or that she
had good cause for the delay. In response, Ms. Williams
acknowledged that her petition was untimely, but argued
that OPM’s adverse decision caused her to become “dis-
traught and dangerously depressed.” Resp’t’s App. 37.
She stated she was “overwhelmed in the effort of obtain-
ing [her] retirement,” and that OPM’s denial resulted in a
“mental shut-down.” Id. Ms. Williams provided medical
documentation relating to her disabilities resulting from
the 2003 car accident.
OPM moved to dismiss Ms. Williams appeal as un-
timely filed. On April 9, 2013, the AJ issued an Initial
Decision dismissing Ms. Williams’s appeal for untimeli-
ness. The AJ found Ms. Williams failed to show good
cause, because she did not show that her 2003 car acci-
dent or any other medical condition prevented her from
filing a timely appeal during the thirty days after receiv-
ing OPM’s final decision. Neither party petitioned for
review, and the AJ’s Initial Decision became the Board’s
final decision on May 14, 2013. Ms. Williams filed this
timely appeal. This court has jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) and 5 U.S.C. §§ 7703(a)(1) and (b)(1).
DISCUSSION
This court must affirm the Board unless its decision is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Gibson v. Dep’t of Veterans
Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998).
4 WILLIAMS v. SHINSEKI
The Board’s dismissal for untimely filing is supported
by substantial evidence and in accordance with law. An
appeal must be filed with the Board within thirty days of
the action being appealed, or within thirty days of receipt
of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(2013). OPM issued its final decision on
December 6, 2012, and Ms. Williams received it on De-
cember 14, 2012. Counting thirty days from December 14
falls on Sunday, January 13th, making the filing deadline
the following Monday, January 14, 2013. Ms. Williams
filed her appeal on January 31, 2013, seventeen days
after the deadline.
The filing deadline can be waived if an appellant
shows a good reason for the delay. 5 C.F.R. § 1201.22(c);
Shiflett v. U.S. Postal Serv., 839 F.2d 669, 672–73 (Fed.
Cir. 1986). Board regulations require that petitioners
seeking to excuse a late filing must submit an affidavit or
sworn statement including: “The reasons for failing to
request an extension before the deadline for the submis-
sion, and a specific and detailed description of the circum-
stances causing the late filing, accompanied by supporting
documentation or other evidence.” 5 C.F.R. § 1201.114(g).
“[W]hether the regulatory time limit for an appeal [of
an agency action] should be waived based upon a showing
of good cause is a matter committed to the Board’s discre-
tion and this court will not substitute its own judgment
for that of the Board.” Walls v. Merit Sys. Protection Bd.,
29 F.3d 1578, 1582 (Fed. Cir. 1994) (internal quotation
marks and citation omitted) (modification in original).
The Board did not abuse its discretion in holding Ms.
Williams failed to show good cause for her late filing. On
appeal, Ms. Williams contends the Board failed to consid-
er her medical records, mailed receipts, and letters. Pet’r’s
Br. 1. The Board did consider this documentation to the
extent relevant, however, but found it did not show that
Ms. Williams was unable to file a timely petition for
review. To the extent Ms. Williams argued that she was
WILLIAMS v. SHINSEKI 5
“dangerously depressed” and “overwhelmed” during the
filing period, the Board did not abuse its discretion in
finding that was not good cause to waive the filing dead-
line. We have considered Ms. Williams’s remaining
arguments and find them unpersuasive. Accordingly, the
Board’s decision dismissing Ms. Williams’s untimely
appeal is affirmed.
AFFIRMED
No Costs.