NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3249 ALEX M. GRIJALVA, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Linda Rose Fessler , The Law Offices of Linda R. Fessle r, of Los Angele s, California, for petitioner. Stephanie M. Conley , Attorney, Office of the Ge neral Counsel, Merit Systems Protection Board, of Washington, DC, fo r respondent. With her on the brief were B. Chad Bungard , General Counsel, and Calvin Morrow , Acting Assistant General Counsel for Litigation. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3249 ALEX M. GRIJALVA, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Merit Systems Protection Board in SF 0752070815-I-1.

___________________________ DECIDED: January 12, 2009

___________________________

Before LOURIE, BRYSON, and GAJARSA, Circuit Judges

. PER CURIAM.

DECISION Alex M. Grijalva challenges the decisi on of the Merit Systems Protection Board dismissing his petition for review as untimely filed. We affirm

. BACKGROUND Mr. Grijalva was a maintenance mec hanic with the Department of Homeland Security at the United States Coast Guard Integrated Support Co mmand in San Pedro, California. Mr. Grijalva’s responsibilities included supervising inmates from the FederalCorrectional Institution on Terminal Island, California, who were assigned to perform maintenance and repair duties at the Integrat ed Support Command as part of an inmate labor program. On June 19, 2007, the agency issued a notice of decision removing Mr. Grijalva from his position for aiding in t he smuggling of prohibited items to Terminal Island inmates in exchange for m oney. The letter informed Mr. Grijalva of his right to appeal the decision to the Boar d within 30 days of his effective removal date of June 25, 2007, or within 30 days of his re ceipt of the removal decision. Mr. Grijalva filed an appeal with the Board on September 11, 2007. In an acknowledgment order dated Sept ember 17, 2007, the administrative judge assigned to the case notified Mr. Grijalva that his appeal appeared to be untimely and advised Mr. Grijalva to res pond with evidence showing that his appeal was timely filed or that good cause excused the filing delay. Although Mr. Grijalva filed a response to that order on September 21, 2007, his response did not address the timeliness issue. On September 26, 2007, Mr. Gr ijalva submitted a second response, in which he asked that the untimeliness of his appeal be ex cused because he had waited to appeal until

after he received notice from the U.S. Attor ney’s office regarding the completion of its criminal investigation relating to his actions. Mr. Grijalva explained that he had filed his appeal with the Board after learning that he was being charged with a misdemeanor rather than a felony and after signing a plea agreement on September 13, 2007. On November 26, 2007, t he administrative judge dismi ssed Mr. Grijalva’s appeal as untimely filed. Mr. Grijalva then filed a petition for review with the full Board in which he again explained that he had incorrectly belie ved that he could not file his appeal of the agency’s removal decision until he knew whether the U.S Attorney intended to

2008-3249 2charge him with a felony or misdemeanor. T he full Board denied Mr. Grijalva’s petition for review, and Mr. Grijalva then petitioned for review by this court.

DISCUSSION Board regulations prov ide that an appeal of an agency decision must be filed within 30 days of the effective date of the dec ision or within 30 days of the date that the appellant received the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1).

The Board can waive the time limit if t he appellant shows good cause for the delay. Id. § 1201.22(c). Whether the appell ant’s showing of good cause is sufficient to justify waiving the time limit “is a matter committed to the Board's discretion and this court will not substitute its own judgment for that of the Board.” Mendoza v. Merit Sys. Prot. Bd. , 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Because the agency’s decision to remove Mr. Grijalva became effective on June 25, 2007, Mr. Grijalva’s appeal on September 11, 2007, was 48 days late. The administrative judge f ound that the considerable length of the delay militated against waiving the time limit. The administrativ e judge further found that the agency’s removal notice clearly explained the time limit for appealing the removal decision. The notice explained that Mr. Grijalva had the right to appeal the agency’s decision so long as he filed his appeal within 30 calendar days of the effective date of removal or 30 calendar days after he received the decision. Mr. Grij alva asserts that t he administrative judge should have excused his delay because he thought that the 30-day time limit did not

commence until he learned whether the U.S. Attorney was going to charge him with a misdemeanor or a felony. The administrativ e judge found that Mr. Grijalva’s mistaken belief regarding the relevance of the crimi nal investigation did not constitute a

2008-3249 3circumstance beyond Mr. Grijalva’s control that affected his ability to file an appeal in a timely manner. Therefore, t he administrative judge concluded t hat Mr. Grijalva failed to show good cause for the delay. Mr. Grijalva argues that he gave a “reasonable excuse for the delay,” and that the administrative judge was therefore required to forgive his untimely filing “absent a showing of substantial prejudice to t he agency caused by the delay in filing.” Walls v. Merit Sys. Prot. Bd. , 29 F.3d 1578, 1582 (Fed. Cir. 1994). To establish good cause or a reasonable excuse for a delay, however, an appe llant must show t hat he exercised due diligence or ordinary prudence under the circumstances. Ceja v. United States , 710 F.2d 812, 814 (Fed. Cir. 1983); Phillips v. U.S. Postal Serv. , 695 F.2d 1389, 1391 (Fed. Cir. 1982). In this case, the agency’s removal notice contained a plain and unambiguous statement that the 30-day time limit began on the date the decision

became effective. See Stahl v. Merit. Sys. Prot. Bd. , 83 F.3d 409, 412 (Fed. Cir. 1996). The notice contained nothing to s uggest that the time limit would not start to run until the U.S. Attorney made a chargi ng decision in the criminal proceeding, or until that proceeding was completed. Under these circum stances, we hold that the Board did not abuse its discretion in concluding that Mr. Gr ijalva failed to show that he exercised ordinary prudence justifying wa iver of the filing deadline. In a case involving a delay in filing a Board appeal, the appellant has the initial burden of showing a reasonable excuse for the delay, and the agency is required to show prejudice only if t he appellant has made that showing of good cause. Womack v. Merit. Sys. Prot. Bd. , 798 F.2d 453, 456 (Fed. Cir. 1986). Because the administrative judge concluded that Mr. Grijalva failed to show good cause justifying his untimely filing,

2008-3249 42008-3249 5 the agency’s failure to submit evidence of substantial prejudi ce flowing from that delay

was immaterial. Mr. Grijalva further contends that “broad equitable principles of justice” support a waiver of the time limit, see Walls , 29 F.3d at 1582, and that any doubt as to good cause must be resolved in his favor, see Ceja , 710 F.2d at 814. However, the administrative judge found that the agency decision clearly notif ied Mr. Grijalva of the time limit to appeal its decision, that the delay was considerable, and that no circumstances beyond Mr. Grijalva’s control affected his ability to file his appeal in a timely manner. Those are appropriate fact ors for the Board to consider when determining whether to gr ant a good-cause waiver. See Walls , 29 F.3d at 1581. In light of the administrative judge’s findings, we see no reason to disturb the Board’s conclusion that Mr. Grijalva failed to s how good cause for his untimely filing. We therefore affirm the dismissal of his appeal on that ground.