NOTE: Pursuant to Fed Cir. R. 47.6, this disposition Is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit
04-3213 MICHAEL P. ELLIOTTE, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________ _________ DECIDED: November 9, 2004

__________________ _________ Before MICHEL, RADER, and GAJARSA, Circuit Judges

. PER CURIAM. Michael P. Elliotte appeals the final decis ion of the Merit S ystems Protection Board (Board), dismissing his appeal as untimely filed. Elliotte v. Dep’t of Veterans Affairs , No. DC-0752-01-0292-I-2 (MSPB Feb. 11, 200 4). Because the Board’s decision is supported by substantial evidence, this court affirms

. BACKGROUND Mr. Elliotte is a former employee of t he Department of Veterans Affairs (DVA). The DVA terminated Mr. Elliotte’s employm ent on December 22, 2000, in light of charges of absence without leave and failing to appropriately secure hospital cleaning supplies and equipment. Mr. Elliotte timely filed an appeal on January 22, 2001 to the Board’s Regional Office (RO). Pr ior to the April 18, 2001 he aring, Mr. Ellio tte requesteda postponement, claiming that he was mentally or physi cally unable to adequate l y participate. The RO granted Mr Elliotte’s request for a postponement but also ordered him to provide medic a l evidenc e of his co ndition and a statement of when he could proceed wit h his claim. On April 18, 2001, Mr. Elliotte left a vo ice mail message at the RO stating that he was an in- patient at a VA hospit a l in Washi ngton, D.C. Based on this information, the RO issued a second o r der on Ap ril 23, 2001 , proposing to dismiss Mr. Elliotte’s app ea l without prejudice. Mr. Elliotte did not res pond to the RO’s April 23, 2001 orde r. According l y, the RO issued an order on May 1, 2001 , dismissin g Mr. Elliot t e’s appe al without prejudice, while providing Mr. Elliotte thirty days to re-file his appeal. Nearly nin e t een months later, on December 21, 2002, Mr. Elliotte sent a letter to the RO, inquiring about the stat us of his case. The RO treated the letter as an attempt to re-file his appeal, and again ordered Mr. Elliotte to prov ide evidence and argument to show good cause for his d e lay. Mr. Elliotte agai n faile d to respon d in any wa y. The RO thus issued its F ebruary 27, 2003 initial deci sio n , denying Mr. Elliotte’s re-filed ap peal as untimely filed. On April 3, 200 3, Mr. Elliot t e filed a p e tition for review to th e Board. In his petition , Mr. Elliotte reiterated his ar guments relating to the substantive charges leading to his dismiss a l. Th e Board issued a final order on February 11, 2004, denying Mr. Elliotte’s petition. Mr. Ellio tte timely appe aled to this court. DISCUSSI ON By statute, this court’s review of a fi nal decision from the Board is limited. A Board dec ision may not be set aside unless it is : (1) arbitrary or capricious, an abuse of discretion, or otherwis e not in accordance wit h law; (2) obtaine d without procedure

04-3 213 2required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidenc e. 5 U.S.C. § 7703(c) (2000). Mr. Elliotte’s cons istent failure t o timely re spond to t h e RO’s requests lef t the Board no alternative other than to dismiss his appeal. Once Mr. Ellio tte failed to timely respond to the RO, timeliness became the sole issue that required resolution prior to reaching the merits of his case. See Wallace v. Me rit Sys. Prot. Bd. , 728 F.2d 1456, 1459 (Fed. Cir. 1984). Regu lation requires that when an appeal is untimely filed, the RO will d i smis s the appeal unless the appellant demonstrates good c ause for the delay. 5 C.F.R. §§ 1201.22(c)-(d). This court has recogn ized several factors that the Board may consider in determining what c onstitutes good cause, including: [T]he length of the delay; whether appellant was notifie d of the time limit or was otherwise aware of it; the exis tence of circumstances beyond the control of t he appellant wh ic h af fected his ability to c o mply with the time limits; the degree to wh ich negligence by the appel lant has been shown to be present or absent; circumstances wh ich show that any neglec t involved is excusable neglect; a showing of unavoidable cas ualty or misfortune; and the extent and nature of the pr ejudice to the agency whic h would result from waiver of the time limit. Walls v. M e rit Sys. Pr ot. Bd. , 29 F.3d 1578, 1582 (Fed. Cir. 1994). In this case, Mr. Ellio tte missed several de adlines, the most egregious of which was the almost nineteen mont hs between the May 31, 2001 deadline to file and Mr. Elliotte’s December 2 1 , 2002 le tter. In his petition for review , although Mr. Elliotte referred to a doctor’s letter, which he did no t produce, he did not present any evidenc e to show good cause for his dela ys. Instead, Mr. Ellio tte argued that he never received the May 1, 2001 initial dec ision, and that he believed he had two years to respond. Even assu ming that Mr. Elliotte did not receive the May 1, 2001 initial d e cisio n , he

04-3 213 3neither complied with the original order to explain his initial delay, nor did he explain any of the subsequent delays. In short, Mr. Elliotte has pr esented no evidence of good cause for the Board’s consi deration. Substantial evi dence therefore supports the decision of the Board to dismiss Mr. Ellio tte’s appe al as untimely filed without goo d cause being shown. Accordingly, t he Board’s final decision is affirmed.

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