                        NOTE: This disposition is nonprecedential.

   United States Court of Appeals for the Federal Circuit
                                       2009-3032


                                   IRENE M. MOORE,

                                                    Petitioner,

                                            v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                    Respondent.


      Irene M. Moore, of Washington, DC, 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 was B. Chad Bungard,
General Counsel.

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                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2009-3032


                                  IRENE M. MOORE,

                                                            Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.


      Petition for review of the Merit Systems Protection Board in DC0752080462-I-1.



                           DECIDED: May 8, 2009



Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

PER CURIAM.


                                     DECISION

      Irene M. Moore petitions for review the final decision of the Merit Systems

Protection Board (“Board”) that dismissed her appeal as untimely. Moore v. Dep’t of

Justice, 110 M.S.P.R. 151 (Table) (2008) (“Final Decision”). We affirm.

                                    DISCUSSION

                                           I.

      Ms. Moore was previously employed as a secretary for the Department of Justice

(“DOJ”). On February 18, 2008, DOJ notified Ms. Moore that she would be removed
from her position for several charges of misconduct, effective on February 22, 2008.

The notice contained a statement that described Ms. Moore’s appeal rights, specifically

indicating that she had to appeal to the Board “no later than 30 calendar days from the

effective date.” In addition, the notice explained that if Ms. Moore did not appeal within

the thirty-day period, her appeal would be dismissed unless she was able to “show a

good reason for delay.” The Board did not receive Ms. Moore’s appeal until April 24,

2008, approximately thirty days after the initial thirty-day period.

       On May 1, 2008, the Administrative Judge (“AJ”) to whom the appeal was

assigned sent Ms. Moore an order, stating that her appeal was untimely and requesting

her to demonstrate “that good cause existed for the delay.” Ms. Moore responded on

May 5, 2008, stating that she did not know that she was required to respond within thirty

days and that she had been waiting to receive certain papers from DOJ. Thereafter on

May 8, 2008, the AJ found that, despite being timely notified of all of her appeal rights,

Ms. Moore did not timely file her appeal and failed to set forth any circumstances that

would have precluded timely filing. Moore v. Dep’t of Justice, No. DC-0752-08-0462-I-1

(M.S.P.B. May 8, 2008) (“Initial Decision”). Accordingly, the AJ dismissed her appeal.

Id. The Initial Decision became the final decision of the Board on June 6, 2008, when

the Board denied Ms. Moore’s petition for review. Final Decision. This appeal followed.

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

                                              II.

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained




2009-3032                                     2
without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Ms. Moore does not appear to address why she untimely filed her

appeal or whether there was good cause to do so. Rather, she primarily focuses on

why her termination was wrongful—the underlying merits of her appeal. Ms. Moore,

however, does highlight that she is not represented by an attorney.

      The Board’s decision dismissing Ms. Moore’s appeal is supported by substantial

evidence and is in accordance with law. As an initial matter, there is clearly substantial

evidence that Ms. Moore untimely filed her appeal—specifically, approximately thirty

days late. See 5 C.F.R. § 1201.22(b)(1). Indeed, she does not contest this finding.

Turning to the Board’s determination to not waive the time limit for appeal, the AJ

considered several factors: namely, the fact that Ms. Moore acknowledged timely

receiving the notice of dismissal containing her appeal rights and the fact that she

provided little justification for her untimely filing, despite the AJ’s request that she

provide such justification.   The AJ even considered the fact that she was not

represented by an attorney. Ultimately, however, after considering numerous factors,

the AJ decided that there was no good cause for Ms. Moore’s untimely appeal—a

decision committed to the Board’s discretion and one with respect to which this court

will not substitute its own judgment. See, e.g., Rowe v. Merit Sys. Prot. Bd., 802 F.2d

434, 437 (Fed. Cir. 1986). Finally, Ms. Moore makes various arguments relating to the

underlying merits of her dismissal. However, “we cannot consider the merits of the case

on the waiver issue.” See id. In other words, those arguments are irrelevant to the




2009-3032                                   3
question of whether the Board erred by declining to waive the timely appeal

requirements.

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

      No costs.




2009-3032                                  4
