                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit

                                       2008-3274

                               FORTUNATA ESTRADA,

                                                            Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.


      Fortunata Estrada, of Tatalon, Quezon City, Philippines, pro se.

      Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Stephanie M. Conley, Acting Assistant General Counsel.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2008-3274


                               FORTUNATA ESTRADA,

                                                              Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.


             Petition for review of the Merit Systems Protection Board in
             SF0831070708-I-1.

                            __________________________

                             DECIDED: December 4, 2008
                            __________________________



Before MICHEL, Chief Judge, MOORE, Circuit Judge, and HUFF, * District Judge.

PER CURIAM.

      Fortunata Estrada petitions for review of the final decision of the Merit Systems

Protection Board (“Board”), dismissing her appeal as untimely filed. Estrada v. Office of

Pers. Mgmt., SF-0831-07-0708-I-1 (M.S.P.B. April 9, 2008).         Because Ms. Estrada

failed to provide good cause for her delay, the Board’s dismissal of her appeal as

untimely was not an abuse of discretion. We therefore affirm.



      *
             Honorable Marilyn L. Huff, District Judge, United States District Court for
the Southern District of California, sitting by designation.
                                              I.

        Fortunata Estrada is the widow of Alejandro Estrada, an employee with the U.S.

Department of the Army in the Philippines during 1947-1955. Before his death, Mr.

Estrada requested benefits under the Civil Service Retirement System. On April 27,

1990, the Office of Personnel Management (“OPM”) decided that Mr. Estrada was

ineligible for such benefits. On December 15, 2002, Ms. Estrada requested that the

OPM reopen her deceased spouse’s case. She also applied for survivor annuitant

benefits.

       On June 12, 2003, the OPM advised Ms. Estrada that “an initial decision to

disallow [her] claim was sent to [her] on [April 27, 1990].” The OPM also informed her

that if she wished to request reconsideration of the decision, she had 30 days to do so.

On November 30, 2003, Ms. Estrada requested reconsideration and asked for an

extension of the 30-day limit because of “typhoon, [f]lood, [m]utiny, and [s]ickness.”

       On February 3, 2004, the OPM dismissed Ms. Estrada’s request for

reconsideration as untimely. The OPM explained that Ms. Estrada failed to provide

sufficient argument and/or evidence that would justify an extension of the time limit for

filing for reconsideration. The OPM informed Ms. Estrada of her appeal rights to the

Board and advised her that “an appeal must be filed within 30 calendar days after the

date of this decision, or 30 days after receipt of this decision, whichever is later.”

       Ms. Estrada filed her appeal with the Board on July 30, 2007.                     In an

Acknowledgment Order dated August 9, 2007, the administrative judge (“AJ”) informed

Ms. Estrada that her appeal appeared to be untimely. The AJ also provided specific




2008-3274                                     2
instructions on how to establish good cause for waiver of the Board’s filing deadline

based on physical or mental illness.

       On August 9, 2007, the AJ further instructed Ms. Estrada in an Order that she

must show by preponderant evidence that the appeal was filed on time or that good

cause existed for her delay. The AJ notified Ms. Estrada that any explanation of the

reason for a late appeal must address why she could not have filed a timely request for

an extension of the filing time limit. The AJ advised Ms. Estrada to submit all evidence

and arguments, and not withhold anything regarding the matter.

       On August 27, 2007, Ms. Estrada’s son entered his appearance as her

representative.   In a sworn statement signed on October 4, 2007, the son stated that

during the period for filing the appeal, he and his mother were not physically able to file

the appeal. He submitted a clinical abstract indicating that Ms. Estrada was admitted to

a hospital with a fractured rib in between September 5 and October 17, 2005. He also

stated that the appeal was filed untimely because he could not understand the

procedure and the documents, and that Ms. Estrada was financially incapable of filing

the appeal.

       On December 3, 2007, the AJ issued an initial decision dismissing Ms. Estrada’s

appeal as untimely filed without a showing of good cause for the delay. On April 9,

2008, the Board denied Ms. Estrada’s petition for review. Ms. Estrada timely appealed

to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                             II.

       Our review of Board decisions is limited by statute. “We must affirm the Board’s

decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise



2008-3274                                    3
not in accordance with law; obtained without procedures required by law, rule, or

regulation having been followed; or unsupported by substantial evidence.” Campion v.

Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).

Because we discern no abuse of discretion in the Board’s determination that Ms.

Estrada failed to show good cause for her delay in filing her appeal, we affirm.

       Ms. Estrada does not allege that unusual delay of mail delivery occurred in this

case. Nor does she deny receiving all relevant documents. Thus, we agree with the AJ

that Ms. Estrada’s appeal to the Board was filed more than three years after the filing

deadline. As the AJ noted, while hospitalization during the filing period may support a

finding of good cause, Ms. Estrada’s hospitalization period did not overlap with the filing

period for her Board appeal. Record evidence establishes that Ms. Estrada was able to

engage the OPM, the Department of Labor, and the Embassy of the Philippines in

Washington, DC through written correspondence during this time period. The AJ thus

correctly concluded that Ms. Estrada’s health condition was not so severely debilitating

as to impair her ability to timely file her Board appeal. The AJ also correctly pointed out

that good cause on the basis of illness could only be established by Ms. Estrada’s

medical condition, and not that of her representative.

       The AJ rejected Ms. Estrada’s argument that she lacked proper knowledge to file

her Board appeal because undisputed record evidence reflected that the OPM informed

her of her rights and gave her detailed instruction for timely filing such an appeal. We

are, as was the AJ, cognizant of Ms. Estrada’s difficult circumstances and misfortunes.

However, as the AJ noted, the three year delay is lengthy and Ms. Estrada failed to




2008-3274                                   4
show a causal relationship between her difficulties and her inability to timely file the

appeal.

       The AJ fully considered all the facts relative to the timeliness issue. Because Ms.

Estrada failed to prove by a preponderance of the evidence that good cause existed for

her delay, the Board’s dismissal of her appeal as untimely was not an abuse of

discretion.

       For the foregoing reasons, the final decision of the Board is affirmed.

                                             COSTS

       No costs.




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