                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                      2009-3235


                              DONATO B. CABANAYAN,

                                                           Petitioner,

                                           v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.



      Donato B. Cabanayan, of San Alejandro, Philippines, pro se.

      Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard,
General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

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                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2009-3235

                              DONATO B. CABANAYAN,

                                                            Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.

Petition for review of the Merit System Protection Board in SF0831090027-I-1.

                           __________________________

                           DECIDED: December 10, 2009
                           __________________________


Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and KENDALL, District Judge. *

PER CURIAM.

      Donato B. Cabanayan (“Cabanayan”) appeals the decision of the Merit Systems

Protection Board (“Board”), which dismissed his appeal as untimely filed. Cabanayan v.

Office of Personnel Management, No. SF-0831-09-0027-1-1 (M.S.P.B. Jan. 12, 2009).

Because we find no basis to overturn the Board’s decision, we affirm.

                                   BACKGROUND

      Cabanayan alleges he was a federal employee employed as a driver by “Trans-

Ocean Airlines” on Wake Island for twelve years, ending on February 13, 1978. On

December 13, 1990, the Office of Personnel Management (OPM) issued a
      *
           The Honorable Virginia M. Kendall, District Judge of the Northern District of
Illinois, sitting by designation.
reconsideration decision affirming its initial decision that Cabanayan was not entitled to

an annuity.       In a letter to Cabanayan, OPM wrote that it found no record that

Cabanayan had service performed subject to CSR coverage and concluded that he was

not entitled to annuity benefits.     OPM informed Cabanayan that this was its “final

decision.” OPM advised Cabanayan of his right to appeal to the Board, and specifically

“note[d] the twenty-five (25) day limit for filing an appeal.”

       Cabanayan wrote to OPM again on June 16, 2008, stating that he desired to

apply for retirement and disability benefits from the “U.S. Government Airforce in Wake

Island, territory of U.S.A. beginning August 12, 1956 up to February 1978.” The letter

did not mention his prior application for retirement benefits.

       Before OPM responded to the June 16, 2008 letter, Cabanayan appealed to the

Board. Cabanayan was advised that his appeal contained no evidence that OPM had

issued a reconsideration decision and the Board might not have jurisdiction over his

appeal because such jurisdiction only existed after OPM issued a final decision. The

appellant was asked to respond with documentation showing that OPM had issued a

final decision.

       Prior to Cabanayan’s deadline to respond, OPM submitted its file containing the

December 3, 1990 reconsideration decision and stated that Cabanayan’s appeal was

untimely because it was not filed within 30 days of OPM’s reconsideration decision. 1

The agency stated that since its reconsideration decision was issued on December 13,



       1
         As pointed out by the Board, after the reconsideration decision was issued in
December 1990, OPM’s regulations changed. An appellant previously received 25 days
after the issuance of the reconsideration decision to appeal to the Board, but now
receives 30 days. OPM’s reference to 30 days instead of 25 days does not affect the
outcome of this appeal.


2009-3235                                      2
1990 and Cabanayan’s appeal was filed on October 14, 2008, Cabanayan’s appeal was

untimely filed and should be dismissed.

        On November 18, 2008, the administrative judge issued an Order on Timeliness

in which he noted that Cabanayan’s appeal was late. The judge stated that to show

good cause for the untimely filing of the appeal, Cabanayan must show that he acted

reasonably and with due diligence under the circumstances of his case. The judge also

set out the factors the Board would consider. Cabanayan was provided with 30 days

from the date of the order to respond, but Cabanayan did not respond.

        On January 12, 2009, the administrative judge issued an initial decision

dismissing Cabanayan’s appeal as untimely filed because it was past the 25-day time

limit for filing an appeal.   The administrative judge noted that Cabanayan failed to

provide any explanation for filing his appeal over 17 years late and determined that

Cabanayan failed to show good cause.

        Cabanayan petitioned the Board to review the initial decision. The Board denied

Cabanayan’s petition for review, finding that there was no new, previously unavailable

evidence and that the administrative judge made no error in law or regulation that

affected the outcome. Cabanayan subsequently appealed to this court on August 21,

2009.

                                      DISCUSSION

        We must affirm the Board’s decision unless it is “(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).   This court has recognized that “an




2009-3235                                  3
administrative agency’s interpretation of its own regulations is entitled to great

deference.” Krizman v. Merit Sys. Prot. Bd., 77 F.3d 434, 439 (Fed. Cir. 1996). A

waiver of a regulatory time limit based on “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.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir.

1992) (en banc). The appellant bears the burden of proof concerning the timeliness of a

required filing. C.F.R. § 1201.56(a)(2)(ii).

       The administrative judge considered the evidence, applied the necessary factors,

and determined that Cabanayan failed to meet his burden to show good cause for the

untimely filing of his appeal. The Board’s decision to dismiss the appeal as untimely

filed was in accordance with the law, not an abuse of discretion, and was supported by

substantial evidence.

       Cabanayan submitted an application for retirement benefits which was previously

denied by OPM in a reconsideration decision dated December 13, 1990. Based on the

Board’s regulations in 1990, an appeal of an agency reconsideration decision must be

filed within 25 days of the issuance of the decision. 5 C.F.R. § 1201.22(b) (1990).

Thus, Cabanayan needed to file an appeal by January 7, 1991.

       Cabanayan instead filed his appeal to the Board on October 2, 2008, some 17

years after the OPM issued its reconsideration decision. The administrative judge noted

that Cabanayan’s appeal appeared to be untimely filed in a November 8, 2008 order on

timeliness. The order explained to Cabanayan the factors the Board would look at to

determine whether he acted reasonably. It further provided Cabanayan with a chance

to show good cause for late filing. Cabanayan did not respond.




2009-3235                                      4
      To determine whether the appellant met his burden for showing good cause, the

Board considers the factors set forth in Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180

(1980). See also Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994)

(recognizing the efficacy of the Alonzo factors and applying them to the administrative

judge’s denial of the good cause waiver). These factors include: (1) the length of the

delay; (2) whether the appellant was notified of the time limit or was otherwise aware of

it; (3) the existence of circumstances beyond the control of the appellant which affected

his ability to comply with the time limits; (4) the degree to which negligence by the

appellant has been shown to be present or absent; (5) circumstances which show that

any neglect involved is excusable neglect; (6) a showing of unavoidable casualty or

misfortune; and (7) the extent and nature of the prejudice to the agency which would

result from waiver of the time limit. Alonzo, 4 M.S.P.R. at 184.

      Applying the factors to this appeal, a 17-year delay in filing an appeal is a very

substantial delay. Although Cabanayan argues before this court that he “never knew to

file before,” the OPM’s December 13, 1990 reconsideration decision specifically

informed Cabanayan that he had 25 days to file his appeal with the Board. Cabanayan

did not provide any evidence or argument to show the existence of circumstances

beyond his control that prevented him from filing his appeal in a timely manner. Nor did

Cabanayan provide any reason for why his neglect was excusable. Cabanayan also

failed to provide any evidence that he had any misfortune that prevented the timely filing

of his appeal. Cabanayan simply failed to respond to the administrative judge’s order

on timeliness. As the Board has held, “Silence does not constitute a showing of good




2009-3235                                   5
cause for the delay.” Balagatas v. Office of Personnel Management, 100 M.S.P.R. 187,

189 (2005).

       The final factor, “prejudice to the agency,” need not be considered because it is

analyzed only after an appellant has shown good cause for his delay in filing the appeal.

See Bacashihua v. Merit Sys. Prot. Bd., 811 F.2d 1498, 1502 (Fed. Cir. 1987). Here,

none of the other factors weigh in Cabanayan’s favor and he has failed to meet his

burden for showing good cause. Thus, the Board properly dismissed his appeal as

untimely filed.

                                    CONCLUSION

       For the reasons stated above, we affirm the Board’s decision.

                                        COSTS

       No costs.




2009-3235                                  6
