Reynolds v. MSPB

Case: 20-2021 Document: 38 Page: 1 Filed: 03/15/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

PENNY J. REYNOLDS, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2020-2021 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-0841-20-0198-I-1. ______________________

Decided: March 15, 2021 ______________________

PENNY J. REYNOLDS, Jackson, KY, pro se.

KATHERINE MICHELLE SMITH, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L. LEAVITT. ______________________

Before MOORE, SCHALL, and TARANTO, Circuit Judges. PER CURIAM.

Case: 20-2021 Document: 38 Page: 2 Filed: 03/15/2021 2 REYNOLDS v. MSPB

Penny Reynolds appeals a final decision of the Merit Systems Protection Board dismissing her appeal as un- timely filed without a showing of good cause for the delay. Reynolds v. Office of Pers. Mgmt., No. CH-0841-20-0198-I- 1, 2020 WL 1915789 (M.S.P.B. Apr. 17, 2020). Ms. Reyn- olds argues that the Board failed to consider the merits of her case seeking recalculation of her income for purposes of receiving disability benefits. Because the Board did not abuse its discretion in considering whether Ms. Reynolds had good cause for her belated filing, we affirm. BACKGROUND On January 29, 2019, the Office of Personnel Manage- ment (OPM) sent Ms. Reynolds an initial decision letter in- forming her she was no longer eligible for her disability retirement benefits because she exceeded statutory income limits. OPM informed Ms. Reynolds that she had 30 days from the date of the initial decision letter to request recon- sideration. On April 5, 2019, Ms. Reynolds requested reconsidera- tion, citing a variety of reasons for missing the 30-day deadline. OPM dismissed that request as untimely and in- formed Ms. Reynolds that she could appeal within 30 days. Ms. Reynolds appealed to the Board on February 3, 2020. That same day, the Board issued a Timeliness Order giving Ms. Reynolds 10 days to file evidence or argument showing she appealed on time or had good cause for her delay. Ms. Reynolds never responded, so an administrative judge granted OPM’s motion to dismiss. On May 22, 2020, the administrative judge’s decision became the final Board decision. Ms. Reynolds appeals. We have jurisdiction un- der 28 U.S.C. § 1295(a)(9). DISCUSSION “We review the Board’s good cause determination for abuse of discretion.” Kerr v. Merit Sys. Prot. Bd., 908 F.3d 1307, 1311 (Fed. Cir. 2018) (citing Herring v. Merit Sys.

Case: 20-2021 Document: 38 Page: 3 Filed: 03/15/2021 REYNOLDS v. MSPB 3

Prot. Bd., 778 F.3d 1011, 1013 (Fed. Cir. 2015)). “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 un- timely filed unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22(c). To show good reason for delay, the appellant must show she exercised “diligence or ordinary prudence” under the circumstances. Kerr, 908 F.3d at 1311 (quoting Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc)). We discern no abuse of discretion in the Board’s deter- mination that Ms. Reynolds failed to show good cause for her delay in appealing OPM’s dismissal. Ms. Reynolds filed her appeal nine months late and never responded to the Board’s Timeliness Order requiring her to file evidence or argument showing good cause. The Board explained that “failure to follow straightforward instructions, and failure to file in accordance with such unambiguous in- structions, constitute[d] failure to exercise due diligence or ordinary prudence.” S.A. 5. The Board did not abuse its discretion in dismissing Ms. Reynolds’ untimely appeal. CONCLUSION Accordingly, we affirm the decision of the Board. AFFIRMED COSTS No costs.