NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY S. SCHNELL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2496
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH-1221-12-0770-W-3, CH-0752-13-0056-I-
3.
______________________
Decided: January 27, 2017
______________________
GARY S. SCHNELL, Sparta, WI, pro se.
SARA B. REARDEN, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before NEWMAN, MOORE, and WALLACH, Circuit Judges.
2 SCHNELL v. MSPB
Opinion for the court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge MOORE.
PER CURIAM.
Petitioner Gary S. Schnell appeals a final order of the
Merit Systems Protection Board (“MSPB”), which denied
his petitions for review of an administrative judge’s (“AJ”)
initial decisions. See Schnell v. Dep’t of the Army, Nos.
CH-1221-12-0770-W-3, CH-0752-13-0056-I-3, 2016 WL
3752331, at ¶ 1 (M.S.P.B. July 13, 2016). In separate
initial decisions, the AJ had dismissed Mr. Schnell’s
appeals as untimely refiled. Resp’t’s App. 11, 18.
“If a party does not submit an appeal within the time
set by statute, regulation, or order of a judge, it will be
dismissed as untimely filed unless a good reason for the
delay is shown.” 5 C.F.R. § 1201.22(c) (2015). The MSPB
has identified several factors that it considers in deter-
mining whether good cause warrants waiving a refiling
deadline. See, e.g., Gaddy v. Dep’t of the Navy, 100
M.S.P.R. 485, 489 (2005). Of these factors, Mr. Schnell
argues that the MSPB erred in its analysis of his pro se
status, his confusion over the refiling deadline, and the
arbitrariness of that deadline. See Pet’r’s Br. 2.
We review the MSPB’s decision not to waive a refiling
deadline for abuse of discretion. See, e.g., Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc). Having reviewed the briefs and the record
before us, we conclude that the MSPB abused its discre-
tion in dismissing Mr. Schnell’s refiled appeals as untime-
ly. On remand, the MSPB must consider Mr. Schnell’s
appeals on the merits. Accordingly, the Final Order of the
Merit Systems Protection Board is
VACATED AND REMANDED
COSTS
Each party shall bear its own costs.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY S. SCHNELL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2496
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH-0752-13-0056-I-3, CH-1221-12-0770-W-
3.
______________________
MOORE, Circuit Judge, dissenting.
Having reviewed the record evidence, and given the
significant length of the delay, I cannot conclude the
MSPB abused its discretion and would affirm the MSPB’s
denial of Mr. Schnell’s petition as untimely refiled with-
out good cause.