Neese v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: July 19, 2023
• Docket: 23-1144
• Status: Unpublished

Opinion

Case: 23-1144 Document: 23 Page: 1 Filed: 07/19/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DANNY J. NEESE, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2023-1144 ______________________

Petition for review of the Merit Systems Protection Board in No. NY-0845-15-0316-I-1. ______________________

Decided: July 19, 2023 ______________________

DANNY J. NEESE, Coram, NY, pro se.

ELIZABETH W. FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before MOORE, Chief Judge, CLEVENGER and CHEN, Circuit Judges. Case: 23-1144 Document: 23 Page: 2 Filed: 07/19/2023

PER CURIAM. Danny J. Neese appeals a decision of the Merit Systems Protection Board (Board) dismissing his petition for review as untimely. For the following reasons, we affirm. BACKGROUND Mr. Neese has received disability benefits since 2013. S. Appx. 11–13. The Office of Personnel Management (OPM) determined Mr. Neese had been overpaid $8,299 in disability retirement benefits and set a repayment sched- ule of 165 monthly installments of $50 and one final install- ment of $49. S. Appx. 34–37. Mr. Neese appealed this decision to the Board. On September 26, 2016, the admin- istrative judge (AJ) issued an initial decision affirming OPM’s determination that Mr. Neese had been overpaid but adjusting the repayment schedule. S. Appx. 10–20. The initial decision notified Mr. Neese that if he wanted the full Board to review the decision, then he must file a petition for review by October 31, 2016. S. Appx. 21. Mr. Neese filed a petition for review on December 5, 2016, thirty-five days after the deadline. S. Appx. 51–53. The Board thus considered whether Mr. Neese’s delay was excusable for good cause. Mr. Neese asserted his petition was untimely because he had been experiencing certain medical issues. He submitted medical statements showing he visited the emergency room on June 20, September 12, and October 6, 2016 due to psychological issues. S. Appx. 52, 56, 69, 74–75. He also submitted a copy of a report from his primary care physician dated December 6, 2016, iden- tifying several diagnoses including anxiety, recurrent ma- jor depressive disorder, and insomnia. S. Appx. 71–73. The Board considered these submissions and found Mr. Neese failed to explain how his medical conditions pre- vented him from timely filing his petition for review. S. Appx. 3–4. Because Mr. Neese did not demonstrate good cause for his delay, the Board dismissed the petition for re- view as untimely. S. Appx. 4. Mr. Neese appeals. We have Case: 23-1144 Document: 23 Page: 3 Filed: 07/19/2023

NEESE v. MSPB 3

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). DISCUSSION A petitioner must file a petition for review “within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision.” 5 C.F.R. § 1201.114(e). The Board may waive this time limit upon a showing of good cause. 5 C.F.R. §§ 1201.113(d), 1201.114(g). To establish good cause, the petitioner “must show that he exercised diligence or ordi- nary prudence under the particular circumstances of the case.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388 (Fed. Cir. 1994) (citation omitted). “[W]hether the regula- tory 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). We will affirm the Board’s decision to dismiss an untimely pe- tition for review unless such decision is arbitrary, capri- cious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 7703(c). The Board did not abuse its discretion in determining Mr. Neese failed to meet his burden to demonstrate good cause for his delay. The Board considered that Mr. Neese had been in the emergency room on June 20, September 12, and October 6, 2016, but found Mr. Neese failed to explain how any of these visits prevented him from timely filing his petition. S. Appx. 3. The visits on June 20 and September 12, 2016 predated the issuance of the September 26, 2016 initial decision. Id. And Mr. Neese did not explain how the one-day emergency room visit on October 6 prevented him from filing his petition on or before the October 31 deadline. Id. The Board also considered that Mr. Neese had been Case: 23-1144 Document: 23 Page: 4 Filed: 07/19/2023

diagnosed with several mental health conditions but again found he failed to explain how these conditions prevented him from filing his petition. S. Appx. 4; see Ford-Clifton v. Dep’t of Veterans Affs., 661 F.3d 655, 659 (Fed. Cir. 2011) (“[W]hen petitioners allege delay for medical reasons, they must affirmatively identify medical evidence that ad- dresses the entire period of delay and explain how the ill- ness prevented a timely filing.”). On appeal, Mr. Neese argues the Board failed to con- sider his lack of intent to file late and his pro se status, but these factors alone do not demonstrate good cause. Mr. Neese also argues the Board’s decision was wrong because “[it] waited six years to make a final decision” on his peti- tion while it lacked a quorum. Appellant’s Informal Open- ing Br. at 3. While unfortunate, the Board’s delay does not demonstrate good cause for Mr. Neese’s delay. On the facts of this case, we cannot say the Board’s dismissal of Mr. Neese’s untimely petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 1 We therefore affirm the Board’s decision. AFFIRMED COSTS No costs.

1 Mr. Neese also makes several arguments challeng- ing the merits of OPM’s underlying decision. See Appel- lant’s Informal Opening Br. at 3; Appellant’s Informal Reply Br. at 2. We cannot consider these arguments be- cause they are beyond the limited scope of this appeal. See Olivares, 17 F.3d at 388. The only issue presented on ap- peal is whether the Board properly dismissed the untimely petition.