Stanley v. Merit Systems Protection Board , 466 F. App'x 874 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES J. STANLEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3195
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752100806-I-1.
__________________________
Decided: January 17, 2012
__________________________
JAMES J. STANLEY, of San Bernardino, California, 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.
__________________________
STANLEY v. MSPB 2
Before LOURIE, DYK, and PROST, Circuit Judges.
PER CURIAM.
James J. Stanley appeals the decision of the Merit
Systems Protection Board (“Board”) dismissing his peti-
tion for review as untimely. For the reasons set forth
below, we affirm.
I. BACKGROUND
On June 29, 2010, Mr. Stanley filed an appeal with
the Board from the Department of Veterans Affairs
employment action removing him from his position of
Materials Handler. The administrative judge affirmed
the agency’s decision to remove Mr. Stanley in an initial
decision on October 22, 2010. Stanley v. Dep’t of Vet.
Affairs, SF0752100806-I-1 (M.S.P.B. Oct. 22, 2010) (“Ini-
tial Decision”).
On October 22, 2010, the Initial Decision was sent to
Mr. Stanley by U.S. Mail and to his representative, Phil-
lip Haynes, by electronic mail. In the Initial Decision, the
administrative judge stated that the decision “would
become final on November 26, 2010, unless a petition for
review is filed by that date or the Board reopens the case
on its own motion.” Initial Decision 12.
Mr. Stanley did not file a petition for review until De-
cember 1, 2010. On June 16, 2011, the Board issued a
final non-precedential order dismissing Mr. Stanley’s
petition for review as untimely filed with no showing of
good cause for the delay. Stanley v. Dep’t of Vet. Affairs,
SF0752100806-I-1 (M.S.P.B. June 16, 2011). In its deci-
sion, the Board noted that the certificate of service
showed that Mr. Haynes was served electronically on
October 22, 2010. Under the Board’s regulations, docu-
3 STANLEY v. MSPB
ments served electronically are presumed to have been
received on the day of electronic submission. 5 C.F.R.
§ 1201.14(m)(2). Accordingly, the Board found that Mr.
Haynes received the Initial Decision on October 22, 2010.
Because service on a party’s representative—here, Mr.
Haynes—is imputed to the party, the Board concluded
that Mr. Stanley also received the Initial Decision on
October 22, 2010. The Board further found that Mr.
Stanley had not shown good cause for missing the filing
deadline and dismissed his petition for review as un-
timely. Mr. Stanley has appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
This court’s review of a decision of the Board is lim-
ited by statute. 5 U.S.C. §7703(c); O’Neill v. Office of
Pers. Mgm’t, 76 F.3d 363, 364-65 (Fed. Cir. 1996). We
may reverse a decision of the Board only if 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).
On appeal, Mr. Stanley does not, in his opening brief,
address the Board’s dismissal of his petition for review as
untimely but rather reargues the merits of his underlying
adverse employment action claim. The only issue before
this court, however, is whether the Board abused its
discretion in declining to waive its regulatory time limit
for filing a petition for review. In his memorandum in
lieu of oral argument, Mr. Stanley argued that Mr.
Haynes had represented to him that his petition for
review was timely filed an that he was unaware that Mr.
STANLEY v. MSPB 4
Haynes had not filed his petition for review by the dead-
line.
The Board will waive its time limit for filing a petition
for review only upon a showing of good cause. 5 C.F.R.
§ 1201.114(f). “[W]hether the regulatory 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). Here, the Board
found that Mr. Stanley’s appeal was untimely and that he
had not demonstrated good cause for missing the filing
deadline. Although Mr. Stanley may have relied on the
statements of his representative who untimely filed his
petition for review, such reliance is not a basis upon
which to establish good cause for his delay in filing. See,
e.g., Harris v. Merit Sys. Prot. Bd., 10 F. App’x 918, 920
(Fed. Cir. 2001). Based on the deference we afford to the
Board, we see no reason to reverse the Board’s decision.
Consequently, the decision of the Board is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED