             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


                                        05-3029



                                   CECIL E. WEAR,

                                                        Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.


                           __________________________

                           DECIDED: April 14, 2005
                           __________________________



Before NEWMAN, CLEVENGER, and RADER, Circuit Judges.

PER CURIAM.



      Mr. Cecil E. Wear appeals the final decision of the Merit Systems Protection Board1

dismissing his refiled appeal as untimely. We affirm.

                                    BACKGROUND


      1      Wear v. Social Security Administration, CH0752010349-I-2 (M.S.P.B. Aug.
12, 2004).



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       Mr. Wear was a Development Clerk with the Social Security Administration in

Evanston, Illinois until the agency terminated his employment on March 27, 2001, on

charges of being absent without leave and for not providing medical and other

documentation for leave. Mr. Wear has stipulated that he did not follow proper leave and

documentation procedures with respect to absences on August 2-4, 1999; August 11-12,

1999; August 24, 1999; September 1, 1999; September 22-27, 1999; November 1-5, 1999;

and December 17, 1999.

       Mr. Wear appealed the agency's decision to the Merit Systems Protection Board.

The administrative judge (AJ) dismissed the appeal without prejudice on May 8, 2001

pending the outcome of a grievance arbitration proceeding regarding Mr. Wear's prior leave

restriction and suspension, with instructions that Mr. Wear should refile the appeal with the

Board within 15 days of the arbitration decision or by close of business November 8, 2001.

Although the AJ initially specified that the appeal had to be refiled by whichever of these

two dates was later, the AJ issued a correction that the appeal had to be refiled by

whichever of these two dates was earlier. Erratum Notice of July 18, 2001.

       On January 11, 2002, the arbitrator denied the grievance. The Fair Labor Relations

Authority denied the union's exceptions to the arbitrator's decision on April 18, 2002. Mr.

Wear submitted an appeal to the EEOC-OFO, which dismissed the appeal on March 13,

2003 and denied a request for reconsideration on May 7, 2003, instructing Mr. Wear that he

could file an appeal to the United States District Court within 90 days.

       Mr. Wear did not refile his appeal with the Merit Systems Protection Board until

September 26, 2003. The Board dismissed the appeal as untimely, because it was not filed




05-3029                                      2
within 15 days following issuance of the arbitration decision or by November 8, 2001, and

Mr. Wear did not show good cause for the delay.

                                       DISCUSSION

       Final decisions of the Merit Systems Protection Board are reviewed to determine

whether they were (1) arbitrary, 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);

Fernandez v. Dep't of the Army, 234 F.3d 553 (Fed. Cir. 2000).

       Mr. Wear's appeal was refiled on September 26, 2003, which was after the deadline

the AJ set for refiling, i.e. November 8, 2001, and was more than 15 days after the

arbitration decision on January 11, 2002. Thus the refiling of the appeal by Mr. Wear was

untimely under the instructions the AJ gave on May 8, 2001. The AJ was justified in setting

a time limit for refiling, in the interest of efficiency and repose. The time limit set was not

unreasonable, and was communicated to Mr. Wear.

       Mr. Wear argues that the authorization to refile with the MSPB within 15 days of the

decision of the arbitrator implicitly included the right to exhaust appeals to other agencies

and courts before refiling with the MSPB. However, this was contrary to the MSPB's clear

instruction that "[the appeal] may be refiled within 15 days following issuance of the

arbitration decision regarding Appellant's 5-day suspension or before close of business on

November 8, 2001 . . . ."

       Further, even on Mr. Wear's position, the EEOC-OFO decision became final on May

7, 2003, and Mr. Wear's 90 days to appeal to the district court ended on August 7, 2003,

while his appeal was not refiled with the MSPB until September 26, 2003, more than 15


05-3029                                       3
days after this final appeal right was exhausted. Thus even according to Mr. Wear's most

expansive method of calculating his time to refile with the MSPB, he was still untimely.

      Mr. Wear acknowledges this untimeliness and states that he had good cause for

delay. Mr. Wear claims that he submitted evidence showing good cause for delay to the

MSPB on October 15, 2003. At this time, Mr. Wear submitted a statement from William

O'Connor, Mr. Wear's representative from the American Federation of Government

Employees, which stated that Mr. Wear should be excused because he was "pursuing

other litigious avenues with the Federal Labor Relations Authority and the Equal

Employment Opportunity Commission regarding his 5-day suspension." On October 23,

2003, the AJ found that this explanation did not constitute good cause. Moreover, as we

have seen, Mr. Wear still waited four and a half months after his appeals with these

agencies were exhausted before refiling his appeal. Mr. Wear made no attempt to explain

this delay. The party seeking to excuse the untimeliness has the burden of establishing a

good cause. The factors the Board may consider include:

      the 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. [Citations and footnotes omitted.] "Excusable neglect" is neglect
      that a reasonably prudent person might manifest under the circumstances.
      "Unavoidable casualty or misfortune" is not preventable by "the exercise of
      reasonable skill and diligence or human prudence or foresight." "Prejudice to
      the agency" relates to the agency's inability to adequately and effectively
      defend its action because of appellant's untimely filing.

Walls v. MSPB, 29 F.3d 1578, 1582 (Fed. Cir. 1994). Mr. Wear has not provided any

explanation; a bare statement cannot suffice to establish good cause. Mr. Wear did not


05-3029                                      4
refile until one and a half years after the arbitration decision, four and one half months after

the EEOC appeal was exhausted, and one and a half months after the ability to file in the

district court was exhausted. He did not provide any explanation of excusable neglect or

unavoidable casualty.

       As discussed in Walls, the waiver of a filing deadline for good cause is within the

discretion of the Board, and the decision is reviewed to determine whether it is arbitrary and

capricious or otherwise not in accordance with law. Id. The Board did not abuse its

discretion in ruling that the refiling was untimely.




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