                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                    2009-3039

                              FRANCES A. RALEIGH,

                                                          Petitioner,

                                         v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Frances A. Raleigh, of LaMarque, Texas, pro se.

      Michael A. Carney, General Attorney, 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 Jeffrey A. Gauger, Attorney.

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                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2009-3039

                                FRANCES A. RALEIGH,

                                                                   Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                                  Respondent.


  Petition for review of the Merit Systems Protection Board in DA-0752-08-0108-I-1.

                           __________________________

                           DECIDED: March 31, 2009
                           __________________________


Before MAYER, DYK, and MOORE, Circuit Judges.

PER CURIAM.

      Frances A. Raleigh seeks review of the final decision of the Merit Systems

Protection Board, which (1) denied Raleigh’s motion to waive the time limit for her

petition for review and/or accept her filing as timely, and (2) dismissed her petition for

review as untimely filed with no showing of good cause for the delay. Raleigh v. Dep’t

of Veterans Affairs, No. DA-0752-08-0108-I-1 (M.S.P.B. Sept. 9, 2008). We affirm.

      We must affirm the final decision of the board unless we conclude that it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 7703(c). Raleigh’s appeal stems from her removal by the Department of
Veterans Affairs from a position as a GS-303-4 Clerk in a Clinical Practice Office. In its

initial decision, the board held that Raleigh’s appeal of the agency’s removal action was

untimely by more than 7 months, and she failed to show good cause for the delay. The

board also provided Raleigh with written instructions for filing a petition for review of this

initial decision, and notification that the deadline for filing the petition would be due by

March 26, 2008. Raleigh was again untimely, filing her petition for review on May 12,

2008.

        A petition for review must be filed within 35 days after the 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). If a party does not submit an appeal within this

time period, it will be dismissed as untimely filed unless good cause for the delay is

shown. Id. § 1201.114(f).     To establish good cause for a filing delay a petitioner must

show that the delay was excusable under the circumstances and that he exercised due

diligence in attempting to meet the filing deadline. Zamot v. Merit Sys. Prot. Bd., 332

F.3d 1374, 1377 (Fed. Cir. 2003).

        Raleigh claimed that she delayed filing her petition for review because she was

undergoing treatment for depression and awaiting proper medical documentation of her

depressive disorder, and she did not request a filing extension due to her mental

instability and medication. In reaching its decision, the board properly considered the

length of the delay, the reasonableness of her excuse, her pro se status, and whether

the evidence presented revealed uncontrollable circumstances affecting her ability to

comply with the time limits. The board found that Raleigh failed to establish a justifiable




2009-3039                                     2
excuse for her untimely filing, because (1) she did not explain her delay in obtaining

medical documentation of her depression, (2) the letter she submitted from her

psychiatrist failed to adequately explain how her illness prevented her from timely filing

the petition for review or requesting an extension, (3) she failed to identify the duration

of her illness, and (4) she submitted no documentation to support her claim that she

was impaired by medication during the time period between the issuance of the initial

decision and the filing of her petition for review. Substantial evidence supports the

board’s determination that Raleigh failed to show that under the circumstances she

exercised due diligence or ordinary prudence sufficient to establish good cause for her

untimely filing.




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