                 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
                                      2006-3257

                                 EDWARD G. DONOVAN,

                                               Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                          ___________________________

                          DECIDED: November 8, 2006
                          ___________________________


Before MAYER, BRYSON, and LINN, Circuit Judges.

PER CURIAM.

                                      DECISION

      Petitioner Edward G. Donovan seeks review of a decision of the Merit Systems

Protection Board, Docket No. DC-0752-05-0523-I-1, in which the Board dismissed his

appeal as untimely. We affirm.

                                    BACKGROUND

      Mr. Donovan was employed as a Distribution Window Clerk with the United

States Postal Service. He was dismissed from duty on September 12, 2003, on the

ground that the Postal Service had no light duty available that could accommodate his

medical restrictions. In January 2004, the Postal Service notified Mr. Donovan that he

could return to work and ordered him to do so. He did not return to work at that time,
but instead took an appeal to the Merit Systems Protection Board arguing that he had

been constructively suspended from September 12, 2003, until the time of his appeal.

The administrative judge assigned to that appeal found that Mr. Donovan was placed on

enforced leave on September 12, 2003, when he was told to go home and was not

allowed to return to duty until he was ordered to do so in January 2004. Because Mr.

Donovan was placed on enforced leave, which constitutes a constructive suspension,

and because he was not accorded the required procedural protections, the

administrative judge held the enforced leave between September 12, 2003, and

January 21, 2004, to be unlawful and entered a back pay order for that period. The

administrative judge further found, however, that after January 21, 2004, Mr. Donovan’s

absence from work was voluntary, since he had been ordered to report for duty or to

provide medical evidence indicating the nature of his illness or injury and how his

condition affected his ability to perform the duties of his position. The administrative

judge’s decision in that appeal became final on September 29, 2004.

      On April 24, 2005, Mr. Donovan filed a second “enforced leave” appeal. In that

appeal, he contended that he had been constructively suspended since September 29,

2004. The administrative judge assigned to that appeal directed Mr. Donovan to submit

evidence and argument to show that he was constructively suspended during that time

and thus that his appeal was within the Board’s jurisdiction. Mr. Donovan responded

that he had informed the Postal Service “as early as September 2004” that he was

available for work within his medical restrictions, yet the agency had not allowed him to

resume work. In response to that submission, the agency moved to dismiss the appeal

for lack of jurisdiction and for untimeliness. The administrative judge then directed Mr.



2006-3257                               2
Donovan to show cause why his appeal should not be dismissed for untimeliness,

inasmuch as the alleged constructive suspension had begun in September 2004 and his

appeal was not filed until April 2005.

       After Mr. Donovan filed his response, the administrative judge found that he had

not alleged that he had made any oral or written request to return to work before late

January 2005. Mr. Donovan asserted that he had been told by an agency official on

January 25 and 26, 2005, that he could not return to work until “an accommodation

review panel had been completed.” Based on that assertion, the administrative judge

concluded that “any period of enforced leave would have commenced” on about

January 25, 2005. Noting that Mr. Donovan’s appeal was not filed until April 24, 2005,

the administrative judge found that it was not filed within the 30-day period for appealing

to the Board from an adverse agency action such as a suspension. The administrative

judge noted that the delay in filing the appeal was substantial and that Mr. Donovan

failed to show either that he was unaware of the timely filing requirement or that there

were any circumstances beyond his control that prevented him from timely filing his

appeal.   Instead, Mr. Donovan argued that his appeal should not be dismissed as

untimely because an earlier appeal “would waste his, the agency’s, and the Board’s

time and resources.” Finding that explanation an inadequate excuse for an untimely

filing, the administrative judge ruled that Mr. Donovan had failed to meet his burden to

demonstrate that he acted with due diligence or ordinary prudence in filing his appeal in

a timely manner. Accordingly, the administrative judge dismissed Mr. Donovan’s appeal

for untimeliness. Mr. Donovan now seeks review by this court.




2006-3257                                3
                                      DISCUSSION

      In his informal brief, Mr. Donovan has not pointed to any specific flaws in the

Board’s order dismissing the appeal for untimeliness. Instead, he has focused on the

merits of his appeal, which the Board did not reach in light of its dismissal on

untimeliness grounds.       We address the timeliness issue and hold that under the

governing standards the Board did not err in dismissing the appeal.

      Based on Mr. Donovan’s version of the facts, it was reasonable for the

administrative judge to conclude that the events that Mr. Donovan contends triggered

his constructive suspension occurred no later than January 25, 2005. Accordingly, it

was reasonable for the administrative judge to rule that the 30-day appeal period began

to run at that time and that Mr. Donovan’s appeal, which was filed on April 24, 2005,

was untimely.

      As the administrative judge noted, in the case of an untimely appeal, the

appellant has the burden of proving that good cause existed for the delay. See 5 C.F.R.

§ 1201.22(c). The administrative judge analyzed the factors bearing on the good-cause

inquiry and concluded that Mr. Donovan failed to establish good cause for the

untimeliness of his appeal. We review that determination for an abuse of discretion.

Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc) (“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.”). We find no

abuse of discretion here.




2006-3257                               4
       The administrative judge listed the factors bearing on the issue of good cause:

the length of the delay, whether the appellant was notified of the time limit for filing the

appeal, whether there were circumstances beyond the control of the appellant that

affected his ability to comply with the time limit, the degree to which negligence by the

appellant has been shown, circumstances that might show that the neglect was

excusable, a showing of unavoidable casualty or misfortune, and, if the appellant has

shown good cause for the delay, the extent and nature of the prejudice to the agency

that would result from waiver of the time limit.

       Although the administrative judge observed that Mr. Donovan had not been

notified of the time limits for filing an appeal, such notification is not required in a case

such as this one, which involves constructive action by the agency rather than actual

agency action, such as a suspension or removal. See Carpenter v. Merit Sys. Prot. Bd.,

111 F.3d 118, 119-20 (Fed. Cir. 1997); Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201

(Fed. Cir. 1996). Moreover, the administrative judge noted that Mr. Donovan, who was

represented by counsel, did not assert that he was unaware of the timely filing

requirement. Indeed, the administrative judge specifically found that Mr. Donovan knew

of the timely filing requirement based on his involvement in several prior Board actions.

In the absence of any challenge to that factual finding, we decline to overturn it.

       Before the administrative judge, Mr. Donovan argued that he had not filed his

appeal promptly because he was waiting to see if the agency would accommodate his

medical restrictions with an appropriate assignment. As the administrative judge noted,

however, once the agency took action that constituted a constructive suspension, the

time for his appeal began to run. He was not entitled to wait to see if his request for an



2006-3257                                 5
accommodation would be resolved at some time in the future and to decide when to

take an appeal based on his own decision as to when the agency had taken too long to

act.

       The administrative judge found that the two-month delay in filing the appeal was

a substantial delay and that Mr. Donovan had shown no circumstances beyond his

control that prevented him from timely filing his Board appeal.              Under the

circumstances, we hold that the Board did not abuse its discretion in concluding that Mr.

Donovan failed to satisfy his burden of showing good cause for the untimeliness of his

appeal. We therefore uphold the Board’s decision dismissing his appeal as untimely.




2006-3257                               6
