       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  TELIN W. OZIER,
                     Petitioner,

                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3060
              __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. DC300A090367-I-1.
              ___________________________

              Decided: November 4, 2010
             ___________________________

   TELIN W. OZIER, of Washington, DC, pro se.

    JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board for respondent.
With him on the brief were JAMES M. EISENMANN, Gen-
eral Counsel and KEISHA DAWN BELL, Deputy General
Counsel.
              __________________________
OZIER   v. MSPB                                            2


 Before RADER, Chief Judge, LOURIE and MOORE, Circuit
                       Judges.
PER CURIAM.

    Telin W. Ozier petitions for a review of a final order of
the Merit Systems Protection Board (MSPB or Board)
dismissing her appeal as untimely and for lack of jurisdic-
tion. Because her appeal was untimely, we affirm.

     Ms. Ozier, a Senior Trial Attorney for the Department
of the Navy, applied in 2007 for the position of Adminis-
trative Law Judge (ALJ). During fiscal year 2008, the
Social Security Administration (SSA) anticipated hiring a
number of ALJs and requested from the Office of Person-
nel Management (OPM) a list of eligible candidates
(“eligibles”). In response, OPM issued to the SSA a certi-
fied list of eligibles that included Ms. Ozier. The SSA
considered her for three ALJ positions in early 2008, and
on April 8, 2008, the SSA notified her that she had not
been selected. On April 25, 2008, SSA notified Ms. Ozier
that she was also on a second OPM list of eligibles for the
ALJ positions. On August 8, 2008, the SSA notified Ms.
Ozier that she had not been selected from the second list.

    On March 9, 2009, Ms. Ozier appealed her August 8,
2008 nonselection to the MSPB, alleging that the SSA,
“with the assistance and knowledge of the [OPM],” used
unlawful employment practices from March 2007 to
August 2008. Specifically, she alleged that OPM and SSA
were “directly involved . . . in the drafting of the struc-
tured interview questions . . . designed to [elicit] informa-
tion intended by SSA to be used to make ALJ selections
based on non-merit factors, including but not limited to
SSA-specific experience, in violation of 5 C.F.R.
§ 300.103(c).” Because her appeal was filed over 30 days
after SSA notified her of her nonselection, the Board
3                                             OZIER   v. MSPB


ordered her to file evidence and argument to show that
her appeal was timely filed or that good cause existed for
her delay. Ozier v. Soc. Sec. Admin, No. DC-300A-09-
0367-I-1 (M.S.P.B. March 17, 2009) (Order to Show
Cause). The Board also offered Ms. Ozier an opportunity
to supplement the record with additional evidence and
argument to show that the Board had jurisdiction over
her appeal. Ozier v. Soc. Sec. Admin, No. DC-300A-09-
0367-I-1 (M.S.P.B. March 27, 2009) (Order to Show
Cause). After considering Ms. Ozier’s submissions, the
Board dismissed her appeal as untimely and for lack of
jurisdiction. Ozier v. Soc. Sec. Admin., No. DC-300A-09-
0367-I-1, 2009 MSPB LEXIS 3442 (M.S.P.B. June 18,
2009) (initial decision); Ozier v. Soc. Sec. Admin., 12
M.S.P.R. 657 (2009) (final decision).

    We must affirm a decision by the MSPB, including a
refusal to waive a time limit, 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); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995); Walls v. Merit Sys. Prot. Bd., 29 F.3d
1578, 1581 (Fed. Cir. 1994). Under 5 C.F.R. § 1201.22, an
appellant is required to file her appeal “no later than 30
days after the effective date, if any, of the action being
appealed, or 30 days after the date of the appellant’s
receipt of the agency’s decision, whichever is later.” The
Board found that because Ms. Ozier’s last appealable
agency action was her nonselection, notice of which she
received on August 8, 2008, her appeal filed March 9,
2009 was seven months late.

    Ms. Ozier argues that the time period for filing an ap-
peal alleging a continuing unlawful employment practice
OZIER   v. MSPB                                            4


is not triggered by the effective date of the agency’s action
or the receipt the agency’s decision, but instead has no
defined period for filing. Ms. Ozier explains that the
alleged unlawful employment practice is a process that
spanned no less than 18 months and was continuing in
nature. Ms. Ozier argues in the alternative that the 30-
day period for an appeal for unlawful employment prac-
tices should start when the appellant knew or should
have known that the unlawful employment practice
existed.

    We agree with the Board—the appealed agency action
triggers the 30-day time period. By statute, Ms. Ozier
“may submit an appeal to the Merit Systems Protection
Board from any action which is appealable to the Board.”
5 U.S.C. § 7701(a) (emphasis added). Ms. Ozier is re-
quired to file her appeal “no later than 30 days after the
effective date, if any, of the action being appealed, or 30
days after the date of the appellant’s receipt of the
agency’s decision, whichever is later.”          5 C.F.R.
§ 1201.22(b)(1) (emphasis added). Thus, the 30-day time
period for Ms. Ozier’s appeal begins on August 8, 2008,
the date that she was notified of SSA’s decision not to
select her. Because Ms. Ozier’s appeal was filed seven
months later, it was not timely filed.

    Ms. Ozier further argues that the Board abused its
discretion by failing to find that she had demonstrated
good cause for delay and not waiving the regulatory 30-
day time period for filing her appeal. 1 The Board will

    1   Ms. Ozier argues that the Board erred in deter-
mining that there was no good cause for waiver of the
time limit in this case. She refers to the doctrine of
equitable tolling and cites cases dealing with statutory
deadlines where equitable tolling principles apply. The
instant case, however, presents a regulatory time limit
5                                             OZIER   v. MSPB


dismiss an appeal not filed within that time “as untimely
filed unless a good reason for the delay is shown.” 5
C.F.R. § 1201.22(c). “[W]hether the regulatory time limit
for an appeal should be waived based upon a showing of
good cause is a matter committed to the Board’s discre-
tion and this court will not substitute its own judgment
for that of the Board.” Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992). To establish good
cause, an appellant must show that she exercised due
diligence and ordinary prudence in the circumstances of
her case. Walls, 29 F.3d at 1582; Alonzo v. Dep’t of the Air
Force, 4 M.S.P.R. 180, 184 (1980). The Board considers
such factors as

    the length of the delay; whether appellant was no-
    tified of the time limit or was otherwise aware of
    it; the existence of circumstances beyond the con-
    trol 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 show-
    ing 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, 29 F.3d at 1582 (quoting Alonzo, 4 M.S.P.R. at
184). The Board found that Ms. Ozier failed to show good
reason for her untimely appeal. The Board reasoned that
Ms. Ozier, a senior trial attorney for the government who
had represented the military in numerous cases before
the Board, is hardly the typical pro se appellant, and as


that, by regulation, may be waived for good reason. As
such, we will apply the good reason criteria of 5 C.F.R. §
1201.22(c).
OZIER   v. MSPB                                          6


such, was clearly aware of the regulatory time limits in
her case. The Board also found that Ms. Ozier demon-
strated that she was aware of the appeal process and the
substance of her claim when she filed her complaint with
the Department of Labor Veterans Employment and
Training Services (“DOL VETS”) and appealed that
decision to the Board on October 6, 2008. The Board
further held that delays caused by attempts to discover a
legal basis for an appeal or to find additional evidence do
not constitute good reason for waiving a filing deadline.
The Board also found that the length of the delay weighed
against Ms. Ozier. As such, we see no abuse of discretion
in the Board’s conclusion that she failed to establish good
reason to be entitled to waiver of the regulatory time
limit. Because we conclude that her appeal was not
timely, we need not reach the other arguments in this
case.

                       CONCLUSION

    For the foregoing reasons, we affirm the decision of
the Board in dismissing Ms. Ozier’s appeal.

                      AFFIRMED
