                      NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                      2009-3074

                         SHAVONNE L. MODEST-COLEMAN,

                                                          Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Shavonne L. Modest-Coleman, of Rochester Hills, Michigan, pro se.

        Joyce G. Friedman, 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 Jeffrey A. Gauger, Acting Associate General Counsel for
Litigation.

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                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                      2009-3074


                         SHAVONNE L. MODEST-COLEMAN,

                                                            Petitioner,

                                           v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.



             Petition for review of the Merit Systems Protection Board in
             CH0752080355-I-1.

                          ____________________________

                              DECIDED: May 5, 2009
                          ____________________________


Before LOURIE, DYK, and PROST, Circuit Judges.

PER CURIAM.
                                      DECISION

      Shavonne Modest-Coleman appeals from the decision of the Merit Systems

Protection Board (“Board”) dismissing her petition for appeal as untimely filed. Modest-

Coleman v. Dep’t of the Treasury, CH-0752-08-0355-I-1 (M.S.P.B. Oct. 29, 2008).

Because the Board’s decision was in accordance with law and supported by substantial

evidence, we affirm.
                                     BACKGROUND

       Modest-Coleman was employed by the Internal Revenue Service in Detroit, MI,

as a supervisory computer assistant. Effective August 3, 2007, the IRS removed her

from that position on charges that she submitted fraudulent documents to the

Department of Housing and Urban Development. The IRS sent Modest-Coleman a

decision letter advising her of its decision. Modest-Coleman acknowledged receipt of

that letter on July 27, 2007. That letter also informed her that she had thirty days from

the effective date of removal in which to file an appeal with the Board. That thirty-day

period ended on September 2, 2007.

       Modest-Coleman did not file an appeal to the Board until February 12, 2008. The

next day, the administrative judge issued an Acknowledgement Order informing

Modest-Coleman that her appeal appeared to be untimely and ordering her to show

good cause for the untimeliness. In response to that order, Modest-Coleman asserted

that she was unaware of the deadline until she contacted her union in February 2008

and that she was in the process of moving during the period when she was required to

file an appeal. She also stated that she was taking medication for depression from July

2007 until October 2007, but did not state that such illness resulted in her untimely filing.

       On June 10, 2008, the administrative judge (the “AJ”) issued an initial decision

dismissing Modest-Coleman’s appeal as untimely filed. The AJ found that Modest-

Coleman had received the notice of removal which contained instructions for filing an

appeal to the Board and therefore was on notice of her appeal rights. The AJ further

found that Modest-Coleman’s depression was not so incapacitating as to render her

unable to pursue her appeal rights in a timely manner.



2009-3074
                                         -2-
         Modest-Coleman appealed the AJ’s decision. On October 29, 2008, the Board

denied her petition for review and the AJ’s decision became the final decision of the

Board.      Modest-Coleman then timely appealed the Board’s decision.              We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                        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 Mendoza v. Merit Sys. Prot. Bd.,

966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).

         A petition for appeal to the Board must be filed within thirty days of the receipt of

an agency’s decision or the effective date of the agency’s action, whichever is later. 5

C.F.R. § 1201.22(b). In this case, the thirty-day time period began on the effective date

of Modest-Coleman’s removal, August 3, 2007. The Board may waive this time period

on a showing of good cause. Id. § 1201.22(c). The burden of showing good cause

rests with the petitioner. Mendoza, 966 F.2d at 653.

         On appeal, Modest-Coleman argues that her untimely filing was the result of

being “under mental stress, poor guidance, lack of knowledge, and suffer[ing] much

embarrassment” due to her removal. She urges us to review her case “due to the

things that unfortunately happened” to her.          While we are sympathetic with her

circumstances, Modest-Coleman’s appeal does not demonstrate good cause for her

untimely filing.



2009-3074
                                          -3-
       We have recognized a number of factors that are relevant to the good cause

inquiry. These factors include the length of the delay in filing, the appellant’s awareness

of the filing deadline, the existence of circumstances beyond appellant’s control, the

degree of negligence on appellant’s part, whether the neglect is excusable, and the

prejudice caused to the agency by the delay. Walls v. Merit Sys. Prot. Bd., 29 F.3d

1578, 1582 (citation omitted). In this case, Modest-Coleman was informed of the filing

deadline, and therefore her claim that she was unaware of the deadline has no merit.

She has not submitted evidence of any circumstances that are not present in the vast

majority of employee action cases, where we have upheld the Board’s failure to find

good cause. “Mental stress” and “embarrassment” can be expected to accompany any

termination of employment. Thus, standing alone, Modest-Coleman’s claims of stress

and embarrassment do not constitute good cause for not filing a timely appeal.

       The only circumstance that Modest-Coleman has pled that could conceivably

constitute good cause for late filing is her claimed depression.       However, Modest-

Coleman has not alleged that her depression resulted in the untimely filing. Nor has

she submitted any documentation that would meet the requirements for establishing

good cause due to mental illness. Such requirements are set forth in Lacy v. Dep’t of

the Navy, 78 M.S.P.R. 434 (1998).         Absent any such documentation, we cannot

overturn the Board’s decision.

       Lastly, Modest-Coleman argues that her removal was not fair in light of the verbal

or written reprimands given to “others with [the] same accusations brought against

them.” Of course, that argument attacks the merits on which the underlying removal

action was based. As the only issue before us is the timeliness of Modest-Coleman’s



2009-3074
                                        -4-
appeal, we cannot address arguments that go to the merits of the underlying action.

See Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986).

      Accordingly, we affirm the Board’s decision.

                                            COSTS

      No costs.




2009-3074
                                      -5-
