Burl v. Merit Systems Protection Board , 263 F. App'x 904 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3005
MELVIN L. BURL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Melvin L. Burl, of Birmingham, Alabama, pro se.
Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were
B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3005
MELVIN L. BURL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752070579-I-1.
DECIDED: February 12, 2008
Before SCHALL, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Melvin L. Burl petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that dismissed as untimely his appeal from the decision of
the Department of Veterans Affairs (“agency”) denying his discrimination complaint.
Burl v. Dep’t of Veterans Affairs, AT-0752-07-0579-I-1 (M.S.P.B. Sept 10, 2007). We
affirm.
DISCUSSION
I.
Mr. Burl received the decision of the agency denying his discrimination complaint
on September 30, 2002. Pursuant to 5 C.F.R. § 1201.154(b)(1), if Mr. Burl wished to
appeal that decision to the Board, he was required to do so by October 30, 2002.
However, Mr. Burl did not appeal to the Board until April 7, 2007, well over four years
later. The Board dismissed Mr. Burl’s appeal after it determined that he had failed to
show good cause for his delay in filing, as required by 5 C.F.R. § 1201.22(c). This
appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health
and Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
On appeal, as was the case before the Board, Mr. Burl makes no attempt to
demonstrate good cause for the lengthy delay in the filing of his appeal to the Board.
Rather, he argues matters that are pertinent only to the merits of his challenge to the
agency’s decision on his discrimination complaint. However, these matters are in no
way relevant to the issue of whether there was good cause for Mr. Burl’s untimely filing
before the Board. In short, Mr. Burl has given us no reason to disturb the decision of
the Board.
2008-3005 2
For the foregoing reasons, the final decision of the Board dismissing Mr. Burl’s
appeal as untimely is affirmed.
2008-3005 3