                  NOTE: Pursuant to Fed Cir. R. 47.6, this disposition
                   Is not citable as precedent. It is a public record.

      United States Court of Appeals for the Federal Circuit
                                         04-3213

                                MICHAEL P. ELLIOTTE,

                                                        Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.

                            ___________________________

                            DECIDED: November 9, 2004
                            ___________________________


Before MICHEL, RADER, and GAJARSA, Circuit Judges.

PER CURIAM.

       Michael P. Elliotte appeals the final decision of the Merit Systems Protection

Board (Board), dismissing his appeal as untimely filed. Elliotte v. Dep’t of Veterans

Affairs, No. DC-0752-01-0292-I-2 (MSPB Feb. 11, 2004). Because the Board’s decision

is supported by substantial evidence, this court affirms.

                                     BACKGROUND

       Mr. Elliotte is a former employee of the Department of Veterans Affairs (DVA).

The DVA terminated Mr. Elliotte’s employment on December 22, 2000, in light of

charges of absence without leave and failing to appropriately secure hospital cleaning

supplies and equipment. Mr. Elliotte timely filed an appeal on January 22, 2001 to the

Board’s Regional Office (RO). Prior to the April 18, 2001 hearing, Mr. Elliotte requested
a postponement, claiming that he was mentally or physically unable to adequately

participate. The RO granted Mr Elliotte’s request for a postponement but also ordered

him to provide medical evidence of his condition and a statement of when he could

proceed with his claim.

       On April 18, 2001, Mr. Elliotte left a voice mail message at the RO stating that he

was an in-patient at a VA hospital in Washington, D.C. Based on this information, the

RO issued a second order on April 23, 2001, proposing to dismiss Mr. Elliotte’s appeal

without prejudice.    Mr. Elliotte did not respond to the RO’s April 23, 2001 order.

Accordingly, the RO issued an order on May 1, 2001, dismissing Mr. Elliotte’s appeal

without prejudice, while providing Mr. Elliotte thirty days to re-file his appeal.

       Nearly nineteen months later, on December 21, 2002, Mr. Elliotte sent a letter to

the RO, inquiring about the status of his case. The RO treated the letter as an attempt

to re-file his appeal, and again ordered Mr. Elliotte to provide evidence and argument to

show good cause for his delay. Mr. Elliotte again failed to respond in any way. The RO

thus issued its February 27, 2003 initial decision, denying Mr. Elliotte’s re-filed appeal

as untimely filed. On April 3, 2003, Mr. Elliotte filed a petition for review to the Board. In

his petition, Mr. Elliotte reiterated his arguments relating to the substantive charges

leading to his dismissal. The Board issued a final order on February 11, 2004, denying

Mr. Elliotte’s petition. Mr. Elliotte timely appealed to this court.

                                        DISCUSSION

       By statute, this court’s review of a final decision from the Board is limited. A

Board decision may not be set aside unless it is: (1) arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedure




04-3213                                        2
required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (2000).

      Mr. Elliotte’s consistent failure to timely respond to the RO’s requests left the

Board no alternative other than to dismiss his appeal. Once Mr. Elliotte failed to timely

respond to the RO, timeliness became the sole issue that required resolution prior to

reaching the merits of his case. See Wallace v. Merit Sys. Prot. Bd., 728 F.2d 1456,

1459 (Fed. Cir. 1984).

      Regulation requires that when an appeal is untimely filed, the RO will dismiss the

appeal unless the appellant demonstrates good cause for the delay. 5 C.F.R.

§§ 1201.22(c)-(d).   This court has recognized several factors that the Board may

consider in determining what constitutes good cause, including:

      [T]he length of the delay; whether appellant was notified of the time limit or
      was otherwise aware of it; the existence of circumstances beyond the
      control of the appellant which affected his ability to comply with the time
      limits; the degree to which negligence by the appellant has been shown to
      be present or absent; circumstances which show that any neglect involved
      is excusable neglect; a showing of unavoidable casualty or misfortune;
      and the extent and nature of the prejudice to the agency which would
      result from waiver of the time limit.

Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994).

      In this case, Mr. Elliotte missed several deadlines, the most egregious of which

was the almost nineteen months between the May 31, 2001 deadline to file and Mr.

Elliotte’s December 21, 2002 letter.    In his petition for review, although Mr. Elliotte

referred to a doctor’s letter, which he did not produce, he did not present any evidence

to show good cause for his delays. Instead, Mr. Elliotte argued that he never received

the May 1, 2001 initial decision, and that he believed he had two years to respond.

Even assuming that Mr. Elliotte did not receive the May 1, 2001 initial decision, he



04-3213                                     3
neither complied with the original order to explain his initial delay, nor did he explain any

of the subsequent delays. In short, Mr. Elliotte has presented no evidence of good

cause for the Board’s consideration.       Substantial evidence therefore supports the

decision of the Board to dismiss Mr. Elliotte’s appeal as untimely filed without good

cause being shown. Accordingly, the Board’s final decision is affirmed.




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