Jones v. Merit Systems Protection Board , 491 F. App'x 185 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RODNEY JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3085
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH4324101024-I-1.
__________________________
Decided: July 24, 2012
__________________________
RODNEY JONES, Waterloo, Iowa, pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
JONES v. MSPB 2
Before NEWMAN, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Rodney Jones appeals from a final order of the Merit
Systems Protection Board (“Board”), dismissing his peti-
tion for review as untimely filed. For the reasons set
forth below, we affirm.
I. BACKGROUND
Mr. Jones began work as a letter carrier for the
United States Postal Service (“USPS”) in Des Moines,
Iowa, on February 18, 1995. On September 26, 1999, Mr.
Jones entered active military duty with the Army Active
Guard Reserve (“AGR”). Mr. Jones served continuously
with the AGR until his military retirement effective June
30, 2007.
After his military retirement, Mr. Jones filed a com-
plaint under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) with the
Department of Labor (“DOL”) concerning USPS’s failure
to reemploy him as a letter carrier. On October 2, 2008,
the DOL notified Mr. Jones that he was not eligible for
USERRA reemployment rights.
On September 18, 2010, Mr. Jones filed an appeal of
the DOL’s decision with the Board. In an initial decision
dated April 5, 2011, an administrative judge denied his
appeal. Jones v. U.S. Postal Serv., CH4324101024-I-1
(M.S.P.B. Apr. 5, 2011). In that same initial decision, the
administrative judge notified Mr. Jones that the initial
decision would become final on May 10, 2011, unless he
filed a petition for further review by or before said date.
Id., slip op. at 8.
3 JONES v. MSPB
Mr. Jones petitioned the Board to review the adminis-
trative judge’s initial decision on August 12, 2011, several
months after the decision had become final. While Mr.
Jones conceded that he was aware of the May 10, 2011
deadline, he asserted that he had made attempts to meet
that date. He claimed that he contacted the administra-
tive judge’s clerk about obtaining a Form SF8, which he
had not received from USPS, and that she advised him to
contact USPS’s representative. Mr. Jones further claimed
that he left a message with the USPS’s representative but
that he never received a reply.
The Board was ultimately not persuaded by Mr.
Jones’s argument and on December 20, 2011, issued a
final order dismissing Mr. Jones’s petition for review as
untimely filed. Jones v. U.S. Postal Serv.,
CH4324101024-I-1 (M.S.P.B. Dec. 20, 2011). Specifically,
the Board noted that Mr. Jones could have asked for an
extension from the Board if he was indeed waiting to
receive a Form SF8. And even if his inability to access
the Form SF8 was beyond his control, the Board found
that Mr. Jones did not explain how the said form related
to the merits of his USERRA claim. Thus, the Board
found that Mr. Jones failed to show good cause for his
filing delay.
This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decisions is narrow and lim-
ited by statute. Under 5 U.S.C. § 7703(c), we may only
set aside the Board’s decision if it is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law; (2) obtained without procedures required
JONES v. MSPB 4
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” Substantial evi-
dence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Con-
sol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
The waiver of a regulatory time limit based on 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). The petitioner bears the burden in demonstrating
an excusable delay by showing an exercise of due dili-
gence or ordinary prudence under the circumstances. Id.When evaluating whether the petitioner’s burden is met,
several factors are considered including “the length of the
delay, whether the appellant was notified of the time
limit, the existence of circumstances beyond the appel-
lant’s control that affected his ability to comply with the
deadline, the appellant’s negligence, if any, and any
unavoidable casualty or misfortune that may have pre-
vented timely filing.” Zamot v. Merit Sys. Prot. Bd., 332
F.3d 1374, 1377 (Fed. Cir. 2003). The Board also consid-
ers whether a petitioner is proceeding pro se. See Marti-
nez v. Broad. Bd. of Governors, 115 M.S.P.R. 44, 49 (Sept.
10, 2010).
Having considered his arguments, we conclude that
Mr. Jones has not carried the heavy burden of establish-
ing that the Board abused its discretion in finding that he
failed to show good cause for the delay in filing his peti-
tion for review. Although Mr. Jones is a pro se petitioner,
he never claimed that he did not understand the clear
direction provided in the initial decision as to when a
petition for review was due. Yet his petition for review
was filed more than three months after the deadline.
5 JONES v. MSPB
Moreover, Mr. Jones has not presented evidence of cir-
cumstances beyond his control that prevented him from
filing a timely petition for review. To be sure, Mr. Jones
asserts that he was late in filing a timely petition because
he was waiting for a Form FS8. He also asserts that he
did not know that asking the Board for additional time
was an option. Mr. Jones, however, fails to explain why
he believed instead that delay was an acceptable option.
Even more to the point, Mr. Jones does not explain how
the Form SF8 is related to the merits of his USERRA
claim. Thus, the Board’s determination that the evidence
weighed against excusing Mr. Jones’s delay is supported
by substantial evidence. Because the Board acted within
its discretion in finding that Mr. Jones failed to show good
cause for his delay and dismissing his appeal as untimely,
we affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED