              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


                                         05-3282



                                  ROBERT LIPPOLIS,

                                                              Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.


                           __________________________

                           DECIDED: January 19, 2006
                           __________________________




Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

PER CURIAM.




      Robert Lippolis petitions for review of the decision of the Merit Systems Protection

Board, No. NY0752040304-I-1, dismissing his appeal as untimely.1 We affirm.

                                     BACKGROUND


     1    Lippolis v. Merit Sys. Prot. Bd., 2004 MSPB LEXIS 1697, No.
NY0752040304-I-1 (Sept. 3, 2004) (initial decision); Lippolis v. Merit Sys. Prot. Bd., 2005
MSPB LEXIS 2417, No. NY0752040304-I-1 (May 20, 2005) (final decision).
       The Federal Aviation Administration removed Mr. Lippolis from the position of Airway

Transportation Systems Specialist, effective June 27, 2002. The agency sent its final

decision dated May 20, 2004 to Mr. Lippolis in care of his representative, and also sent a

"cc" copy of the decision directly to Mr. Lippolis. Both mailings were by certified mail, return

receipt. The decision and covering letter reached Mr. Lippolis at his home address on May

27, 2004, and reached his representative on June 9, 2004, the delay apparently due to an

incorrect zip code. Mr. Lippolis through his representative filed an appeal on July 9, 2004,

thirty days after the receipt by his representative, but more than thirty days after receipt of

the copy sent directly to Mr. Lippolis. See 5 C.F.R. §1201.22(b) (an appeal to the Board

must be filed within thirty days of the effective date of the action being appealed or thirty

days after receipt of the agency's decision, whichever is later).

       The agency moved for dismissal of the appeal as untimely filed. By order dated

August 5, 2004, the Administrative Judge ("AJ") notified Mr. Lippolis that he had to

establish timeliness or good cause to waive the filing requirement. See §1201.22(c) (the

appeal filing deadline may be waived if the appellant shows good cause for the delay in

filing). Mr. Lippolis responded, through his representative, that the thirty day period was

calculated based on the June 9, 2004 receipt by the representative.

       The AJ held that the thirty days ran from the date that Mr. Lippolis first received the

decision, citing Foley v. Dep't of Health & Human Servs., 84 M.S.P.R. 402, 404 (1999) for

the position that the appeal time begins to run from the earlier of when the appellant or his

designated representative receives the decision. The AJ held that Mr. Lippolis had not

demonstrated good cause for the delay. Mr. Lippolis' petition for review by the full Board

was denied, and this appeal followed.


05-3282                                        2
                                       DISCUSSION

       The Board's refusal to waive delay in filing is reviewed to determine whether it was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5

U.S.C. §7703(c). "We have often stated that whether 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 discretion 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) (en banc).

       To establish good cause for an untimely filing, the appellant must establish that he

exercised diligence and prudence under the circumstances. See Mendoza, 966 F.2d at

653. This court has endorsed the non-exhaustive list of factors for consideration of good

cause as set forth in Alonzo v. Dep't of Air Force, 4 M.S.P.R. 180, 184 (1980):

       [Factors include] 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.

See Yuni v. Merit Sys. Prot. Bd., 784 F.2d 381, 384 (Fed. Cir. 1986) (endorsing the Alonzo

factors).

       The AJ considered the Alonzo factors and held that Mr. Lippolis had not exercised

due diligence or ordinary prudence sufficient to establish good cause for the delay. The AJ

characterized the eleven-day delay as "not extensive," but found that Mr. Lippolis had

received notice of the decision, that the notice contained straightforward instructions of the

time for filing the appeal, and that there was no indication that Mr. Lippolis had been



05-3282                                       3
confused by the notice. The AJ observed that Mr. Lippolis had been represented by an

attorney and was bound by his attorney's incorrect view of the filing deadline, unless Mr.

Lippolis could establish that he made diligent efforts to prosecute the appeal and that these

efforts were thwarted without his knowledge by attorney deception or negligence. See

Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986) ("It is well settled that a

person is bound by the consequences of his representative's conduct, which includes both

his acts and omissions"); see also Dunbar v. Department of the Navy, 43 M.S.P.R. 640,

644 (1990) ("it is inappropriate to apply the principle that an attorney's actions should be

attributed to his client when the client has proven that his diligent efforts to prosecute the

suit were, without his knowledge, thwarted by his attorney's deceptions and negligence").

       The AJ found no indication in the response to the order to show cause that Mr.

Lippolis had timely contacted his attorney or sought guidance as to the time limit for filing

his appeal. The AJ also found no indication that Mr. Lippolis had been misinformed or

confused as to the deadline for appeal, and held that Mr. Lippolis had not established good

cause for the untimely filing.

       Mr. Lippolis stated in his petition to the full Board that upon receipt of the decision he

did call his representative, but was informed that the representative was out of the office for

two weeks. Mr. Lippolis further states that he nonetheless began gathering relevant

documents in anticipation of an appeal to the Board, and that he considered the notice

confusing and ambiguous because it did not explain that the earlier date of receipt of the

decision would start the thirty day period. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578,

1583 (Fed. Cir. 1994) (good cause was established because the notice was "subject to

reasonable misinterpretation"). These arguments, however, were first made in his petition


05-3282                                        4
for review by the full Board, whereas before the AJ, Mr. Lippolis, through his attorney,

merely asserted that they had in good faith relied on the date of attorney receipt. The

MSPB argues that Mr. Lippolis was represented by counsel, and is bound by any

miscalculation of the date, even if there were a legitimate basis for uncertainty as to which

date applied. The MSPB points to its precedent which states that the earlier date applies.

We discern no abuse of the Board's discretion, for Mr. Lippolis directly received the carbon

copy of the letter and decision by certified mail, and the letter, which was addressed to him

care of his attorney, clearly states that the time limit is thirty days from receipt of the

decision. We conclude that the Board did not abuse its discretion in refusing to consider

the arguments and assertions that were not presented to the AJ. These arguments were

not "new and material evidence [that] despite due diligence, was not available when the

record closed". 5 C.F.R. §1201.115(d).

         Applying Meglio v. Merit Sys. Prot. Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1984)

("Where petitioner fails to frame an issue before the presiding official and belatedly

attempts to raise that same issue before the full board, and the board properly denies

review of the initial decision, petitioner will not be heard for the first time on that issue in the

Federal Circuit"), these new mitigating arguments are not subject to consideration in this

court.




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