N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________

DOUGLAS J. MACNEILL, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2012

- 3175

______________________
Petition for review of the Merit Systems Protection
Board in No. DA0752110587 -I- 1.

______________________

Decided: April 10, 2013

______________________

D OUGLAS J. M AC N EILL , of Salem, New Hampshire, pro

se.

S ARA B. R EARDEN

, Atto rney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief were J AMES M.
E ISENMANN

, General Counsel, and K EISHA D AWN B ELL
, Deputy General Counsel.

______________________DOUGLAS MACNEILL v. MSPB 2

Before R ADER

, Chief Judge, O’ M ALLEY

, and W ALLACH

, Circuit Judges.

P ER C URIAM

. Mr. Douglas J. MacNeill appeals from a Merit Sy stems Protection Board ’s (“Board”) decision dismissing his appeal as untimely. Because substantial evidence su pports a finding of Mr. Macneill’s failure to show good cause for the delay in filing his appeal, the Board’s dec ision is affirmed.

B ACKGROUND

Mr. MacN eill was employed by the Department of the
Air Force (“agency”) as a Logistics Management Specialist at Tinker Air Force Base, Oklaho ma. On January 21, 2009, the agency proposed to remove Mr. MacNeill from his position for refusing to submit to a n urinalysis test

, and on February 20, 2009, the agency informed him of his removal effective February 25, 2009. The decision letter
i nformed Mr. MacNeill that he could file an appeal of the agency’s decision within thirty days from the effective
date of the decision. Mr. MacNeill ’s appeal was filed on July 22, 2011, more than two years or 847 days after t he deadline for filing his appe al

. On August 1 and October 5 , 2011

, the administrative judge issued orders directing Mr. MacNeill to file evidence and argument showing that his appeal was timely filed or that good cause existed for the delay. Based on Mr.
MacNeill ’s and the agency’s responses to these orders, on November 22, 2011, the administrative judge issued an initial decision dismissing the appeal as untimely filed. MacNeill v. Dep’t of the Air Force , No. DA

- 0752

- 11

- 0587 -I1, slip op. at 1 (M.S.P.B. November 22, 2011) (“Initial Decision”). Mr. MacNeill petitioned the full Board to review the Initial Decision. On June 18, 2012, the full Board adopted the Initial Decision finding no error on the part of the administrative judge. MacNeill v. Dep’t of theDOUGLAS MACNEILL v. MSPB 3

Air Fo rce , No. DA

- 0752

- 11

- 0587 -I-1

, slip op. at 3 (M.S.P.B. June, 28, 2012) (“Final Decision”). Mr. MacNeill ’s petition
to this court followed. This court has jurisdiction under

28 U.S.C. § 1295(a)(9).

D ISCUSSION
The scope of our review in an appeal from a Boa rd d ecision is limited. We can only set aside the Board’ s dec ision 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 foll owed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)

. “ Whether the regulatory time limit for an appeal of an agency action should be waived based upon 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. ” Walls v. Merit Sys. Prot. Bd. , 29 F.3d 1578, 1581 (Fed. Cir. 1994) ( citation and internal quotations marks omitted).

Here, the a dministra tive j udge applied the standards set forth in Alonzo v. Dep’t of Air Force , 4 M.S.P.R . 180, 184 (1980), and dismissed Mr. MacNeill ’ s appeal because it was untimely filed without good cause

. The Board subsequently denied Mr. MacNeill’s petition for review
because it found that the administrative judge did not

c ommit legal error that affected the outcome of the case
and because Mr. MacNeill did not present any new, previously unavailable, evidence after the record was
closed . 5 C .F.R. § 1201.115 (b) . This court finds no error in
these decisions.

In particular, Mr. MacNeill had the burden of proving by a preponderance of the evidence that his appeal was timely before the Board

. 5 C.F.R. § 1201.56 (a)(2 ) (ii)

. It is

un controverted that Mr. MacNeill ’s appeal was not tim ely. See 5 C.F.R. § 1201.22(b) (1) (“[A] n appeal must be filed no later than 30 days after the effective date, if any, of theDOUGLAS MACNEILL v. MSPB 4

action being appealed, or 30 days aft er the date of the appellant’s receipt of the agency’s decision, whichever is
later. ”). A s the Board ordered, Mr. MacNeill had to sh ow good cause why his appeal was filed more than two years
after the effective date of his remov al. Alonzo

, 4 M.S.P.R

. at 184. 1

Responding to the Board’ s order to show cause, Mr.
MacNeill provided , in relevant part , that his delay in filing the appeal was the result of : “ 1) adverse influence; 2) harassment and stalking occurring from an unknown source in, on, and around a mili tary installa tion; 3) d eployment of esoteric sy stems and technologies against his person; and 4) perceived experimentation and polit ics at
the w orkplace that extended into his personal off

- duty
environ ment.” Initial Decision at 2– 3. T he administrative judge did not find evidence supporting Mr. MacNeill ’ s assertions

. For example , it was found that there was no evidence indicating that the agency in some fashion prevented him from filing a timely appeal nor did he show that he was, for instance, ill during the 847 days before filing this appeal. The administrative judge found no

1 “[ F]actors for consideration . . . in deciding whether
to waive the 20

- day limitation should include . . . the length of the delay; whether appellant was notified of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and 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 (internal footnotes omitted)

. The efficacy of these factors has been recognized by this court. Walls , 29 F.3d at 1582.DOUGLAS MACNEILL v. MSPB 5

basis supporting a showing of good cause as to the “signi ficant” 847

- day delay. Id. at 6.

The full Board on petition for review agreed with the
Initial Decision and adopted its findings as the Final
Decision. The Board further stated that there was no delay in the issuance of the decision that affected Mr.
MacN eill ’s rights . Final Decision at 2.

This decision is supported by the record. Mr. MacNeill does not provide substantive evidence as to why he was 847 days late in filing h is appeal to the Board. Bare assertions alleging that he was prevented from filing a timely appeal cannot suffice. As a result , the Board’ s decision here is left undisturbed because the Board re asonably exercised its discretion to determine whether the requirements for waiver of the time limits on appeals
have been met. See Phillips v. U nited States Postal Ser v. , 695 F.2d 1389, 1390 (Fed. Cir. 1982).

AFFIRMED

No Co sts.