                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
                                     2006-3164

                             PAULETTE G. CHAPPLE,

                                               Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                          ___________________________

                          DECIDED: August 9, 2006
                          ___________________________


Before NEWMAN, MAYER, and BRYSON, Circuit Judges.

PER CURIAM.

                                     DECISION

      Paulette G. Chapple petitions for review of a final decision of the Merit Systems

Protection Board, Docket No. DC-0432-00-0714-I-1. We affirm.

                                   BACKGROUND

      Until her removal on July 3, 2000, Ms. Chapple was employed as a program

analyst for the Department of the Treasury. She was removed from her position based

on a charge of unacceptable performance, and in August 2000 she appealed to the

Merit Systems Protection Board from the removal action.          During a telephonic

conference on October 5, 2000, between the parties and the Board’s administrative

judge, Ms. Chapple and her representative, Charles Wharton, stated that she wished to
withdraw her appeal with prejudice. The administrative judge granted that request and

entered an order on October 12, 2000, dismissing the appeal with prejudice. Although

the order stated that it would become final on November 16, 2000, unless a petition for

review by the full Board was filed before that time, no petition was filed within that

period, and the order of dismissal therefore became the final order of the Board.

       Four and a half years later, on June 30, 2005, Ms. Chapple filed a petition for

review with the full Board in which she sought to challenge her removal action and

asserted that her previous representative had failed to represent her properly before the

administrative judge during her appeal.     The Board advised Ms. Chapple that her

petition was untimely, and it ordered her to file a motion for waiver of the time limit,

including an affidavit or sworn statement showing good cause for the delay.          She

requested and was granted a 15-day extension of time to file the motion for waiver of

the time limit on the ground that her new representative was out of town. However,

even with the benefit of the time extension, she failed to file a motion for waiver of the

time limit. The Board then entered an order in which it treated her untimely petition for

review of the order dismissing her appeal as an untimely appeal from the underlying

removal action and, in the alternative, as a request to reopen her appeal. The Board

then dismissed the appeal as untimely filed without a showing of good cause for the

delay, and it denied the request to reopen the case on the ground that Ms. Chapple had

failed to present any new and material evidence in support of the request. Ms. Chapple

now petitions for review by this court.




2006-3164                                   2
                                       DISCUSSION

         In her petition for review by this court, Ms. Chapple asserts that the Board should

have addressed the merits of her challenge to her removal. She also argues that in

deciding whether good cause had been shown for the delay in filing her petition for

review by the full Board, the Board should have taken into account certain materials that

she submitted at the time she filed her petition.

         The question of the merits of Ms. Chapple’s removal is not before us. Because

the Board dismissed the appeal on grounds of untimeliness and declined to reopen the

case because of the failure to submit new and material evidence, we are limited to

addressing the correctness of those determinations by the Board. See Rowe v. Merit

Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986); Wallace v. Merit Sys. Prot. Bd., 728

F.2d 1456, 1459 (Fed. Cir. 1984).

         Pursuant to statutory authorization, 5 U.S.C. § 7701(e), the Board accepts

untimely petitions for review upon a showing of good cause for the delay. 5 C.F.R.

§ 1201.114(f). The Board also accepts untimely appeals if a good reason for the delay

is shown. 5 C.F.R. § 1201.22(c).       When the Board declines to waive a filing deadline

on the ground that an appellant has not shown good cause for the late filing, we review

that determination for an abuse of discretion. See Zamot v. Merit Sys. Prot. Bd., 332

F.3d 1374, 1377 (Fed. Cir. 2003); Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653

(Fed. Cir. 1993) (en banc); Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir.

1982).

         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




2006-3164                                     3
attempting to meet the filing deadline. Zamot, 332 F.3d at 1377; see also Walls v. Merit

Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (listing factors that may be relevant

to a determination of whether good cause has been shown for a delay).

       In this case, we hold that the Board did not abuse its discretion in ruling that Ms.

Chapple did not establish good cause for her untimely filing, whether it be regarded as

an untimely petition for review or an untimely appeal. As the Board noted, her filing was

more than four years out-of-time.      Her only explanation for that lengthy delay was

presented in the form of an unsworn submission to the Board at the time she filed her

petition for review, in which she asserted that her representative at the time of her initial

appeal, Howard Wallace, had misrepresented to her that he was an attorney. Setting

aside the fact that the administrative judge identified her representative at the time she

withdrew her initial appeal as Charles Wharton, the same person that Ms. Chapple

identified as her representative when she filed her petition for review in June 2005, Ms.

Chapple did not provide any explanation for why she delayed seeking relief for more

than four years. In her submission to this court, Ms. Chapple states that attorney Kay

Clarke was representing her in a civil action against Mr. Wallace at least as early as

August 2004. Yet Ms. Chapple did not pursue her Board appeal for nearly a year after

that time, and she offered no explanation for that period of delay.            Under these

circumstances, there is no basis for concluding that the Board abused its discretion in

finding that Ms. Chapple had failed to show good cause for her untimely filing.

       With respect to the question whether the Board should have reopened the case

and reinstated the appeal, the Board will not reinstate an appeal once it has been

withdrawn in the absence of unusual circumstances. See Soto v. Dep’t of Justice, 95




2006-3164                                    4
M.S.P.R. 552, 554 (2004); Ramos v. Office of Pers. Mgmt., 82 M.S.P.R. 65, 67 (1999).

In this case, Ms. Chapple has not pointed to any unusual circumstances sufficient to

require that the Board reopen the case and reinstate the appeal. Although Ms. Chapple

contends that she was misled by Mr. Wallace, who allegedly recommended that she

pursue a remedy before the equal employment opportunity office of her employing

agency rather than before the Board, Ms. Chapple was a party to the proceedings

before the administrative judge, and she personally agreed to the dismissal of her

appeal with prejudice. Under these circumstances, we hold that the Board did not

abuse its discretion in concluding that her assertions as to alleged misrepresentations

made to her by Mr. Wallace were not sufficient to constitute new and material evidence

justifying the reopening of her case and the reinstatement of her appeal. Accordingly,

we uphold the decision of the Board in dismissing the appeal and denying the request to

reopen.




2006-3164                                 5
