NOTE: This disposition is nonprecedential.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

______________________ 

DOUGLAS J. MACNEILL, of Salem, New Hampshire, 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 JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL,

Deputy General Counsel. 

______________________ 
2 DOUGLAS MACNEILL v. MSPB

Before RADER, Chief Judge, O’MALLEY, and WALLACH,

Circuit Judges.

PER CURIAM. 

Mr. Douglas J. MacNeill appeals from a Merit Systems Protection Board’s (“Board”) decision dismissing his 

appeal as untimely. Because substantial evidence supports a finding of Mr. Macneill’s failure to show good 

cause for the delay in filing his appeal, the Board’s decision is affirmed. 

BACKGROUND

Mr. MacNeill was employed by the Department of the 

Air Force (“agency”) as a Logistics Management Specialist

at Tinker Air Force Base, Oklahoma. On January 21, 

2009, the agency proposed to remove Mr. MacNeill from 

his position for refusing to submit to an urinalysis test, 

and on February 20, 2009, the agency informed him of his 

removal effective February 25, 2009. The decision letter 

informed 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 the 

deadline for filing his appeal. 

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 the 
 DOUGLAS MACNEILL v. MSPB 3

Air Force, 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).

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). “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 administrative judge 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 

commit 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 

uncontroverted that Mr. MacNeill’s appeal was not timely. 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 the 
4 DOUGLAS MACNEILL v. MSPB

action being appealed, or 30 days after the date of the 

appellant’s receipt of the agency’s decision, whichever is 

later.”). As the Board ordered, Mr. MacNeill had to show 

good cause why his appeal was filed more than two years 

after the effective date of his removal. 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 military installation; 3) deployment of esoteric systems and technologies against his 

person; and 4) perceived experimentation and politics at 

the workplace that extended into his personal off-duty 

environment.” Initial Decision at 2–3. The 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 “significant” 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. 

MacNeill’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 his 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 reasonably exercised its discretion to determine whether the 

requirements for waiver of the time limits on appeals 

have been met. See Phillips v. United States Postal Serv., 

695 F.2d 1389, 1390 (Fed. Cir. 1982). 

AFFIRMED

No Costs.