             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

                                        05-3251

                                   ROBERT SAPIEN

                                                             Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,


                                                             Respondent.

                            __________________________

                             DECIDED: January 17, 2006
                            __________________________



Before NEWMAN, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.


                                      DECISION

      Robert Sapien (“Mr. Sapien”) petitions this court for review of the April 27, 2005

final decision of the Merit Systems Protection Board (“Board”), which adopted the initial

decision of the administrative judge (“AJ”). On February 10, 2004, the AJ affirmed the

Department of the Navy’s (“Navy’s”) removal of Sapien for excessive unauthorized

absence and failure to properly report an unplanned absence. Sapien v. Dep’t of the

Navy, No. CF-0752-04-0031-I-1 (M.S.P.B. February 10, 2004) (initial decision).       On
April 27, 2005, the Board denied Mr. Sapien’s petition to reconsider the initial decision,

and it issued a final order in this case. Because the Board’s decision is not arbitrary,

capricious, or an abuse of discretion, is supported by substantial evidence and is

otherwise in accordance with the law, we affirm the Board’s decision.

                                    BACKGROUND

      On November 17, 1989, Mr. Sapien was removed from his position of Sheet

Metal Mechanic at the Naval Aviation Depot, North Island, San Diego, on account of

excessive unauthorized absences and failure to report an unplanned absence.           On

October 17, 2003, Mr. Sapien appealed his dismissal to the Merit Systems Protection

Board (“Board”).

      Because his appeal was untimely, having been filed almost fourteen years after

his removal, Mr. Sapien bore the burden of demonstrating to the Board that the delay

was excusable. Mendoza v. Merit Systems Protection Bd., 966 F.2d 650, 653 (Fed. Cir.

1992). Mr. Sapien sought to meet his burden by introducing evidence that between

1989 and 2003 he had suffered from physical illness, serious mental illness, and

substance abuse problems. After considering the evidence, the AJ opined that Mr.

Sapien had “provided an abundance of medical documentation,” noting inter alia that in

1990, Mr. Sapien had applied for and received a social security disability for

schizophrenia. The AJ concluded, however, that Mr. Sapien had failed to establish

good cause for the delay, because he “[did] not explain how his medical condition and

history prevented him from timely filing his appeal or why it took more than thirteen

years to finally file with the Board.” The AJ also found that even if Mr. Sapien were to

have shown good cause for the delay, the doctrine of laches would apply, because after




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almost fourteen years, the agency would be at a serious disadvantage in attempting to

justify its removal action, given its intervening destruction of documents, as well as the

unavailability of key witnesses. For both reasons, the AJ granted the agency’s motion

to dismiss the appeal as untimely. On April 27, 2005, the Board denied Mr. Sapien’s

petition for review and issued a final order in the case.

                                       DISCUSSION

       We must affirm an MSPB decision unless it is “(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)(1)-(3) (1994); accord Phillips v. United States

Postal Serv., 695 F.2d 1389, 1390 (Fed. Cir. 1982) (holding that our consideration of

cases where timeliness is an issue is “limited to whether the board’s decision not to

waive the regulatory time limit was arbitrary, an abuse of discretion, or otherwise not in

accordance with law”).      A decision is supported by substantial evidence when “a

reasonable mind might accept [it] as adequate to support a conclusion.” Matsushita

Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (internal

quotations omitted).

       As an initial matter, it should be noted that when the Board denied Mr. Sapien’s

petition for review of the AJ’s initial decision in this case, the initial decision became the

final decision of the Board. See 5 C.F.R. § 1201.113(b). We turn, therefore, to the

substance of the initial decision.

       First, we note that the AJ correctly stated the factors that are relevant to a

showing of good cause for delay:




05-3251                                       3
          [F]actors for consideration by a presiding official in deciding whether to
          waive the 20-day limitation should include, but are not necessarily limited
          to, the following: 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.

          Alonzo v. Dep’t of the Air Force, 4 M.S.P.B. 262 (1980) (cited in Walls v. Merit

Sys. Protection Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994).

          Second, we hold that substantial evidence supports the findings of the AJ. While

we have no doubt that Mr. Sapien has suffered from significant mental and physical

illnesses, he simply failed to meet his burden of demonstrating to the Board that he had

been unable to prepare and file an appeal throughout the entire period of the delay. In

his informal brief, Mr. Sapien “apologize[s] for not being able to chronologically write this

brief.”    The presence or absence of a chronological account is not relevant.            The

substance of the account, however, is critical.         Here, after carefully reviewing the

appellant’s brief and examining the record, we agree with the AJ that Mr. Sapien has

failed to establish that he was incapacitated from filing an appeal during the entire

period of the delay. We note, for example, the appellant’s ability to apply for Social

Security disability benefits in 1990.

          As an additional ground for affirmance, we agree with the AJ that the agency

would be have been seriously prejudiced by Mr. Sapien’s extensive delay in filing an

appeal with this court. Because the Board’s decision is not arbitrary, capricious, an

abuse of discretion, unsupported by substantial evidence, or otherwise not in

accordance with the law, we affirm the Board’s decision.



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