                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                         06-3288

                                 HERMON D. WRIGHT,

                                                        Petitioner,

                                             v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.

                            __________________________

                              DECIDED: December 5, 2006
                            __________________________


Before MICHEL, Chief Judge, LINN and PROST, Circuit Judges.

PER CURIAM.

       Hermon D. Wright (“Wright”) appeals from a final decision of the Merit Systems

Protection Board (“Board”), Wright v. Dep’t of the Air Force, 101 M.S.P.R. 594, No. DA-

0752-00-0397-M-1 (M.S.P.B. Apr. 28, 2006). In that final decision, the Board dismissed

as untimely Wright’s petition to review an administrative judge’s initial decision that had

dismissed as withdrawn Wright’s appeal of his removal from the United States Air

Force. See Wright v. Dep’t of the Air Force, No. DA-0752-00-0379-I-1 (M.S.P.B. July

27, 2000) (“Initial Decision”). Because Wright’s petition was untimely and the Board’s

decision not to waive the time limit was not “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law,” see 5 U.S.C. § 7703(c), we affirm.
                                       BACKGROUND

       Until April 14, 2000, Wright was employed by the United States Air Force as an

aircraft engine mechanic at Tinker Air Force Base in Oklahoma. On that date, Wright

was removed from employment. Wright appealed his removal to the Board.

       On July 24, 2000, Wright withdrew his appeal, and the administrative judge

accordingly dismissed the appeal as withdrawn. Initial Decision. The initial decision

included a notice that it would “become final on August 31, 2000, unless a petition for

review [wa]s filed by that date or the Board reopens the case on its own motion.” Id.,

slip op. at 2.

       Wright did not file a petition by that date, but on July 23, 2003, he sent a letter to

the Clerk of the Board in which he requested refiling and/or reconsideration of his

appeal.    The Board construed this as a petition for review, but it noted in its

acknowledgment that it appeared to be untimely and that Wright would need to show

good cause for his late filing. It also provided Wright with instructions on how to file a

motion for waiver of the time limit.

       Having allegedly received no response from Wright, the Board dismissed the

petition as untimely filed on December 30, 2003. Wright v. Dep’t of the Air Force, 96

M.S.P.R. 1 (2003). Wright appealed to this court. In his submissions, he included

evidence that he had faxed a completed motion for a waiver of the time limit to the

Board on August 14, 2003.        At the Board’s request, we ordered that the case be

remanded so that the Board could consider Wright’s motion. Wright v. MSPB, 115 Fed.

Appx. 432 (Fed. Cir. Oct. 20, 2004).




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       On remand, the Board declined to find good cause for Wright’s delay and again

dismissed his petition for review. Wright, 101 M.S.P.R. at 598. Wright again appealed

to this court; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       Under 5 C.F.R. § 1201.114(d), “[a]ny petition for review must be filed within 35

days after the date of 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.” Wright’s petition, filed almost

three years after the initial decision, did not meet this deadline.

       Nonetheless, the Board will excuse late filings if a party shows “good cause.” 5

C.F.R. § 1201.114(e), (f). Wright alleged in his motion to waive the deadline that his

deteriorating mental health prevented him from making a timely filing and thereby

constituted good cause. In support, he submitted a letter stating that he was under

treatment for acute stress disorder and post-traumatic stress disorder from September

1997 until September 2000. The letter also stated that beginning in September 2000,

and continuing through the letter’s date of August 11, 2003, he “continues medication

and treatment” by another physician.

       As the Board observed, however, Wright did not provide evidence of his

condition or treatment between September 2000 and August 2003, a period that

encompasses nearly all of the time between his deadline for filing a petition for review

and when he actually filed one.        He also provided no evidence as to “how those

conditions prevented him from filing his petition or a request for an extension of time.”

Wright, 101 M.S.P.R. at 597. In the absence of such evidence, the Board’s decision




06-3288                                   3
was not “arbitrary, an abuse of discretion, or otherwise not in accordance with law.”

See 5 U.S.C. § 7703(c); Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1390 (Fed. Cir.

1982).

         Wright also argues that the administrative judge gave him misleading or incorrect

information that led him to withdraw his initial appeal. This argument goes to the merits

of his petition for review, not to the question of timeliness, and we cannot and do not

consider it.

         Because we discern no error in the Board’s dismissal of Wright’s appeal, its

decision is affirmed.

                                          COSTS

         No costs.




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