NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SHIRLEY J. BATCHELOR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3189
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752101089-I-1.
___________________________
Decided: February 3, 2012
___________________________
SHIRLEY J. BATCHELOR, of Mableton, Georgia, pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before NEWMAN, LINN, and MOORE, Circuit Judges.
BATCHELOR v. MSPB 2
PER CURIAM.
This case is an appeal from a decision by the Merit
Systems Protection Board (Board) dismissing Shirley J.
Batchelor’s appeal as untimely filed. Because there is
substantial evidence supporting the Board’s decision, and
because the decision was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law, we affirm.
BACKGROUND
Ms. Batchelor retired from her position at the De-
partment of Housing and Urban Development. She
subsequently filed an Equal Employment Opportunity
complaint alleging that her retirement was involuntary
and thus a constructive termination based on discrimina-
tion. A final agency decision providing a right of appeal to
the Board was received by Ms. Batchelor’s attorney on
July 17, 2010. Ms. Batchelor submitted her appeal to the
Board’s Atlanta Regional Office on September 20, 2010.
The Board issued an order to show cause why Ms.
Batchelor’s appeal should not be dismissed as untimely
filed. In response, Ms. Batchelor claimed her attorney
misled her and failed to respond to her attempts to con-
tact him. Ms. Batchelor also claimed she had to take care
of her critically ill daughter in Chicago. In an initial
decision, the Board dismissed the case for failure to
comply with 5 C.F.R. § 1201.22(b), which requires that
appeals be filed within 30 days of the agency’s decision.
The Board explained that attorney negligence resulting in
an untimely filing does not constitute good cause for a
delay, and noted that Ms. Batchelor also received a copy
of the final agency decision, and was therefore in a posi-
tion to file her own appeal. Finally, the Board noted that
Ms. Batchelor failed to identify when her daughter was ill
or explain how her daughter’s illness prevented her from
3 BATCHELOR v. MSPB
filing a timely appeal. As a result, the Board concluded
that Ms. Batchelor failed to prove good cause for her
delay.
Ms. Batchelor petitioned for review, reiterating her
argument that she was misled by her attorney. Ms.
Batchelor also provided medical records related to her
daughter’s hospitalization. The full Board held that it did
not need to consider this new evidence since she failed to
submit the medical evidence in the first instance. The
Board reviewed the applicable standards and concluded
that Ms. Batchelor’s appeal was untimely and she failed
to show good cause for the delay. A final order dismissing
the appeal followed, and Ms. Batchelor appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1295.
DISCUSSION
We affirm the Board’s decision unless it is “(1) arbi-
trary, 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). “Substantial evidence is ‘such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.’” McEntee v. Merit Sys. Prot. Bd.,
404 F.3d 1320, 1325 (Fed. Cir. 2005) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
On appeal Ms. Batchelor fails to address the Board’s
dismissal of her claim as untimely filed and instead
argues the merits of the claim. The Board, however, held
that Ms. Batchelor failed to meet the requirements of 5
C.F.R. § 1201.22(b), which states in relevant part that “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 the appellant’s receipt of the
agency’s decision, whichever is later.” It is undisputed
BATCHELOR v. MSPB 4
that Ms. Batchelor’s attorney received the agency’s deci-
sion by July 17, 2010, and Ms. Batchelor herself received
the agency decision by August 2, 2010. The appeal,
however, was not filed until September 20, 2010, well
outside of the 30 day time period of 5 C.F.R. § 1201.22(b).
Accord 5 C.F.R. § 1201.154(b)(1) (“An appeal must be filed
within 30 days after the appellant receives the agency
resolution or final decision on the discrimination issue
. . . .”). We therefore conclude that there is substantial
evidence to support the Board’s finding that Ms.
Batchelor’s appeal was untimely.
Because Ms. Batchelor’s appeal was not filed within
30 days after receipt of the agency’s decision, “it will be
dismissed as untimely filed unless a good reason for the
delay is shown.” 5 C.F.R. § 1201.22(c). The Board gave
Ms. Batchelor the opportunity “to show why the appeal
should not be dismissed as untimely,” id., but Ms.
Batchelor failed to submit evidence supporting her argu-
ment that she had “a good reason for the delay” stemming
from her daughter’s illness. Because Ms. Batchelor had
the burden to show good cause for the delay, id., and did
not submit any evidence in support of her claims, the
Board’s holding that she failed to demonstrate good cause
for the delay was not an abuse of discretion and was
supported by substantial evidence. Likewise, it was not
an abuse of discretion for the Board to decline to consider
new, previously available evidence for the first time on
petition for review. See, e.g., Meglio v. Merit Sys. Prot.
Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1984) (“Where peti-
tioner fails to frame an issue before the presiding official
and belatedly attempts to raise that same issue before the
full board, and the board properly denies review of the
initial decision, petitioner will not be heard for the first
time on that issue in the Federal Circuit.”); see also Her-
nandez v. Dep’t of Air Force, 498 F.3d 1328, 1333 (Fed.
5 BATCHELOR v. MSPB
Cir. 2007) (“[N]either we, nor the board, may consider in
the first instance evidence not presented to the AJ.”).
We conclude that the Board’s dismissal of Ms.
Batchelor’s appeal as untimely was not arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law, and is supported by substantial evidence.
We have considered Ms. Batchelor’s additional arguments
on appeal and find them to be without merit.
AFFIRMED
NO COSTS.