NOTE: This disposition is nonprecedential.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 NOTE: This disposition is nonprecedential.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. ModestColeman 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 ModestColeman 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. 

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 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. 

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 -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, ModestColeman 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 

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 -5- 

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.