                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3096

                                LACEY ALEXANDER,

                                                            Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Lacey Alexander, of Philadelphia, Pennsylvania, pro se.

       Loren Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Patricia M. McCarthy, Assistant Director.

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                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                        2008-3096


                                  LACEY ALEXANDER,

                                                             Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.

              Petition for review of the Merit Systems Protection Board in
              PH844E070443-I-1.
                            ____________________________

                               DECIDED: May 12, 2008
                           ____________________________


Before LOURIE, BRYSON, and DYK, Circuit Judges.

PER CURIAM.
                                        DECISION

       Lacey Alexander appeals from the final decision of the Merit Systems Protection

Board (the “Board”) denying her appeal as untimely filed.        Alexander v. Office of

Personnel Mgmt., PH-844E-07-0443-I-1 (M.S.P.B. November 9, 2007).               Because

Alexander has not demonstrated that the Board abused its discretion or otherwise

committed legal error in its decision, we affirm.

                                     BACKGROUND

       Alexander worked for the Internal Revenue Service (“IRS”) until July 7, 1989. On

June 24, 1992, she filed an application for disability retirement benefits, claiming that
she had injured her back on the job in 1985. The Office of Personnel Management

(“OPM”) issued an initial decision on August 4, 1992, denying her request because

Alexander had failed to file her claim within one year of the termination of her federal

service, as required under 5 C.F.R. § 201(a)(1). The initial decision letter informed

Alexander that the one-year deadline could be waived if she provided evidence that she

was “mentally incompetent” during the period when she should have acted. Mental

incompetence was defined in that letter as being unable to handle one’s personal affairs

because of physical or mental disease or injury. The letter further informed her that she

had thirty days in which to request reconsideration. Alexander did not do so for over

twelve years.

      When she finally did request reconsideration on October 11, 2004, OPM issued a

letter that notified her of the untimeliness of her request and provided her with an

opportunity to request a waiver of the missed filing deadline. Alexander did not respond

to that letter within the prescribed thirty-day time period either. On March 1, 2005, OPM

issued a reconsideration decision finding that Alexander had let pass the deadline for

requesting reconsideration and had not shown that she was entitled to a waiver of that

deadline. Alexander, as all appellants before OPM, was given thirty days to file an

appeal to the Board. She again failed to file an appeal within that timeframe, but she

did file an appeal two years later on June 13, 2007.

      The administrative judge (AJ) assigned to the case ordered Alexander to

demonstrate that her appeal to the Board was timely or that good cause existed for its

untimeliness. In response to this request, Alexander submitted several documents that

she claimed demonstrated her inability to have made a timely filing. Those documents



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                                       -2-
included a copy of her medical disability form from the Commonwealth of Pennsylvania

which she files annually in order to receive food stamps and a medical card; a form from

her psychologist, Dr. Frankel, diagnosing her with major depression, panic attacks, and

post-traumatic stress disorder; and a letter from her therapist at the Community Council

for the Mental Health and Mental Retardation Corporation in Philadelphia stating that

she had been receiving treatment for the conditions diagnosed by Dr. Frankel since

2004, and that she was unable to perform tasks requiring focus and concentration and

unable to “demonstrate effective functioning in her daily life.”

       The AJ found Alexander’s explanation for her untimeliness unpersuasive. In an

initial opinion issued on August 30, 2007, the AJ found that Alexander failed to explain

why she was able to annually file for medical disability, which provided food stamps and

a medical card, yet unable to file an appeal in this case. The length of the delay – over

two years – was also considered “significant” by the AJ. Furthermore, the AJ found that

even if Alexander had shown good cause for the filing delay in her appeal to the Board,

she had failed to show that OPM’s reconsideration decision regarding her untimely filing

of a reconsideration request was unreasonable or an abuse of discretion.

       Alexander then requested reconsideration of the AJ’s decision.         In a brief

decision issued on November 9, 2007, the Board denied review finding that Alexander

had not presented any new or previously unavailable evidence on appeal. Thus, the

AJ’s initial decision became final.

       Alexander timely appealed to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




2008-3096
                                         -3-
                                       DISCUSSION

       The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003). Generally, an appeal from a Board decision

“must be filed no later than 30 days after the effective date, if any, of the action being

appealed, or 30 days after the date of receipt of the agency's decision, whichever is

later." 5 C.F.R. § 1201.22(b)(1) (2007). "If a party does not submit an appeal within the

time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed

unless a good reason for the delay is shown." 5 C.F.R. § 1201.22(c) (2007).

       In this case, it is undisputed that Alexander let pass four filing deadlines: first, she

failed to apply for benefits from OPM within a year of the termination of her federal

service; second, she failed to request reconsideration of OPM’s initial decision within

the required thirty-day period; third, she failed to demonstrate good cause for her

delayed reconsideration request to OPM within thirty days of OPM’s letter; and fourth,

she failed to appeal to the Board within thirty days of OPM’s reconsideration decision.

The Board has explained what an appellant must show in order to demonstrate good

cause for an untimely filing: "(1) identify the time period during which he suffered from

the illness; (2) submit medical evidence showing that he suffered from the alleged

illness during that time period; and (3) explain how the illness prevented him from timely




2008-3096
                                          -4-
filing his appeal or a request for an extension of time." Lacy v. Dep’t. of the Navy, 78

M.S.P.R. 434, 437 (1998).

       On appeal, Alexander makes the same arguments that she made, and presents

the same evidence that she presented, in her appeal before the AJ.              Essentially,

Alexander argues that she was so incapacitated by her various medical problems as to

be unable to appeal to the Board within the thirty-day time period. She disagrees with

the AJ’s reliance on her annual filing for disability as evidence that she was physically

able to file an appeal.     She states that only with the help of her daughter and

granddaughter was she able to file her disability forms.

       OPM responds that Alexander has not provided any new evidence and thus the

Board’s decision should be affirmed. OPM reiterates the AJ’s finding that Alexander’s

two-year delay in filing is “significant” and not fully explained by evidence of her medical

history. OPM suggests that if Alexander’s daughter and granddaughter assist her in

filing for disability, then it seems reasonable that they could have helped her file her

appeal as well.

       We agree with OPM that the Board did not abuse its discretion in denying

Alexander’s appeal.     However, we do not entirely sustain the Board’s reasoning.

Alexander presented medical evidence that she has been receiving care for her stress,

depression, and panic attacks since 2004, the year in which she failed to timely appeal

OPM’s reconsideration decision to the Board. The letter from her therapist describes an

inability to perform tasks requiring focus and concentration as well as an inability to

effectively function in daily life. Under the circumstances, the Board may have erred in

finding that Alexander failed to show good cause for her untimely appeal to the Board.



2008-3096
                                         -5-
       However, Alexander presented no evidence showing that she had been

incapable of performing basic tasks since 1990 or 1992, the years in which she had to

file for disability benefits and seek reconsideration of OPM’s denial of those benefits,

respectively. The evidence presented only demonstrated treatment and incapacitation

since 2004.    Thus, Alexander was unable to explain, or provide medical evidence

showing, why she failed to file for disability benefits on time, and additionally why she

failed to timely request reconsideration of OPM’s initial decision.

       Thus, while the Board may have been incorrect in holding that Alexander’s

untimely appeal to the Board lacked good cause, it did not abuse its discretion in

holding that Alexander’s application for disability benefits and her request for

reconsideration to OPM were untimely and unexcused.

       Accordingly, we affirm the Board’s decision.

                                          COSTS

       No costs.




2008-3096
                                         -6-
