                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                        2009-3221


                                RUFUS L. MITCHELL, JR.,

                                                       Petitioner,

                                             v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                       Respondent.
                                                            .

      Rufus L. Mitchell, Jr., of Decatur, Georgia, pro se.

      Mark R. Syska, Attorney-Advisor, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel. Of counsel
was Dana DeLorenzo.

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                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2009-3221

                               RUFUS L. MITCHELL, JR.,

                                                              Petitioner,

                                            v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.

Petition for review of the Merit Systems Protection Board in AT0752080769-I-1.
                            ___________________________

                             DECIDED: January 11, 2010
                           ___________________________


Before MICHEL, Chief Judge, NEWMAN and RADER, Circuit Judges.

PER CURIAM.

       The Merit Systems Protection Board (the “Board”) dismissed petitioner Rufus

Mitchell’s petition for review as untimely filed. Because the Board did not abuse its

discretion in declining to waive the time limit to file a petition for review, this court

affirms.

       On July 18, 2008, the U.S. Postal Service removed Mr. Mitchell from his position

as a mail processing clerk for failure to be in regular attendance. Mr. Mitchell timely

appealed to the Board. The administrative judge issued an initial decision on October

20, 2008, sustaining the agency’s charge and removal.            With the decision, the

administrative judge informed Mr. Mitchell that the initial decision would become final on
November 24, 2008, unless he filed a petition for review with the Board by that time.

Almost four months later—on February 18, 2009—Mr. Mitchell filed a petition for review

addressing the merits of his appeal. The Board then dismissed Mr. Mitchell’s petition as

untimely. In so doing, the Board determined that Mr. Mitchell had failed to show good

cause excusing his delay. Mr. Mitchell timely appealed to this court.

       A petition for review “must be filed within 35 days after the date of issuance of the

initial decision or, if the petitioner shows that the initial decision was received more than

5 days after the date of issuance, within 30 days after the date the petitioner received

the initial decision.” 5 C.F.R. § 1201.114(d). The Board may waive this time limit upon

a showing of good cause by the petitioner. Id. at § 1201.12. “To establish good cause

for a filing delay, an appellant must show that the delay was excusable under the

circumstances and that the appellant exercised due diligence in attempting to meet the

filing deadline.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).

This court has often stated that whether the time limit for filing a petition can be waived

is a decision left to the discretion of the Board. That decision will not be disturbed

unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with the law. See Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992).

       On appeal, as in front of the Board, Mr. Mitchell contends that his delay was

excused because of various personal problems that made it difficult for him to timely file

his petition, including being a single parent of three children (one mentally challenged),

being evicted from his home, having his telephone and utilities cut off, and trying to

obtain unemployability benefits. In support of his motion at the Board, Mr. Mitchell

submitted an eviction order issued on August 25, 2008, a subsequent residential lease



2009-3221                                    2
agreement dated October 1, 2008, and a Georgia state decision granting

unemployability benefits issued on November 20, 2008. The Board rejected each of the

reasons proffered as having no bearing on Mr. Mitchell’s ability to timely file a petition

for review.   More specifically, the Board found that all the pertinent issues in Mr.

Mitchell’s proffer had concluded on October 1, 2008—roughly twenty days before the

administrative judge issued his initial decision on October 20.       With respect to his

unemployability benefits, the Board concluded that even if it could qualify to show good

cause before a final decision, it could not justify Mr. Mitchell’s three-month delay here.

That is, Mr. Mitchell’s unemployability benefits were granted on November 20, 2008,

and he filed his untimely petition for review on February 18, 2009.

      In his reply brief to this court, Mr. Mitchell contends that his residential lease

agreement is misleading because he did not really move into his new house until

November 18, 2009. In that vein, Mr. Mitchell attaches what purports to be a rent

receipt dated November 26, 2008. He also includes a Chapter 13 bankruptcy filing with

bankruptcy court in Georgia.

      In light of the record submitted to the Board, however, this court cannot say that

its decision was arbitrary or capricious. Indeed, there is ample evidence supporting the

conclusion that the crises in Mr. Mitchell’s life were complete well before the initial

decision by the administrative judge. Even construing Mr. Mitchell’s proffered evidence

as broadly as possible, there remains nothing on the record that would justify a four-

month delay in filing his petition for review. Nor does Mr. Mitchell attempt to show any

diligence in filing from the period of mid November 2008 to mid February 2009. While




2009-3221                                   3
this court is sympathetic to the difficult position Mr. Mitchell is undoubtedly in, the Board

did not abuse its discretion. The decision of the Board is therefore affirmed.

                                          COSTS

       No costs.




2009-3221                                    4
