NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

CYNTHIA T. HOPSON,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3042

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT0752110783-I-1.

______________________ 

Decided: May 10, 2013 

______________________ 

CYNTHIA T. HOPSON, of Arlington, Tennessee, pro se.

SARAH B. REARDEN, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief were BRYAN G.

POLISUK, General Counsel, and KEISHA DAWN BELL,

Deputy General Counsel. 

______________________ 
2 CYNTHIA HOPSON v. MSPB

Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.

PER CURIAM. 

DECISION

Cynthia Hopson seeks review of a decision of the Merit Systems Protection Board dismissing her appeal as 

untimely. We affirm. 

BACKGROUND

Ms. Hopson worked for the Internal Revenue Service 

as a Tax Examining Technician in Memphis, Tennessee. 

On May 6, 2011, the IRS sent her a letter removing her

from her position effective May 13, 2011. The letter set 

forth the basis for the removal, along with a detailed

description of her various appeal rights. In particular, it 

explained that she could appeal to the Merit Systems 

Protection Board but that, “[t]o be timely, an appeal to the 

Board must be filed no later than 30 calendar days after 

the effective date, if any, of the action being appealed, or 

30 calendar days after the date of receipt of the agency’s 

decision, whichever is later.” 

Ms. Hopson signed the decision letter acknowledging 

her receipt of it on May 21, 2011. She then returned the 

signed letter to the IRS and wrote that she was “going to 

appeal.” The returned letter bears a date stamp indicating that the IRS’s Labor Relations Section in Memphis

received it on June 10, 2011. 

On July 5, 2011, Ms. Hopson electronically filed an

appeal to the Board. In that filing, she stated that she 

had received the IRS’s final decision letter on May 18, 

2011. Because more than 30 days had passed between 

Ms. Hopson’s receipt of the agency decision and the filing 

of her appeal, the IRS filed a motion with the Board’s 

administrative judge arguing that the appeal was untimely and asking for an order requiring Ms. Hopson to ex-
 CYNTHIA HOPSON v. MSPB 3

plain why her appeal was not filed within the 30-day time 

limit. 

The administrative judge issued an Order on Timeliness on November 25, 2011. The order explained that the 

30-day period to file an appeal began on May 18, 2011—

i.e., the date on which Ms. Hopson said that she had 

received the IRS’s letter—and that her filing of July 5, 

2011, appeared to be 18 days late. The order directed Ms. 

Hopson to prove either that her appeal had, in fact, been 

filed on time or that good cause existed for the delay in 

her filing. She never responded to the order. 

On January 25, 2012, therefore, the administrative 

judge dismissed the appeal as untimely. The administrative judge found that the appeal was due by June 20, 

2011, at the latest and that Ms. Hopson had missed the 

deadline. The judge added that, because Ms. Hopson had 

submitted no evidence to explain the delay, she had failed 

to establish that there was good cause for her belated 

filing or that a waiver of the time limit was justified. 

Ms. Hopson filed a petition for review with the Board 

in February 2012 and sent an additional submission the 

following month. The Board found that neither document 

addressed the timeliness issue. The Board therefore 

“agree[d] with the administrative judge that this appeal 

must be dismissed as untimely filed with no good cause 

shown,” denied the petition for review, and affirmed the 

administrative judge’s dismissal. Ms. Hopson appeals. 

DISCUSSION

Appeals from agency removal decisions generally 

must be filed within 30 days of the decision’s effective 

date or the aggrieved party’s receipt of the decision, 

whichever is later. 5 C.F.R. § 1201.22(b)(1). A party that 

files too late, however, may avoid dismissal of the appeal 

upon showing “good reason” or “good cause” for the delay. 

Id. §§ 1201.12, 1201.22(c). But the appellant bears the 
4 CYNTHIA HOPSON v. MSPB

burden of establishing good cause to excuse an untimely 

filing, and “whether the regulatory time limit for an 

appeal should be waived based upon [such] a showing . . . 

is a matter committed to the Board’s discretion.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 

1992) (en banc); see also 5 C.F.R. § 1201.56(a)(2)(ii). 

We see no abuse of discretion in the Board’s decision

to dismiss Ms. Hopson’s appeal as untimely. She never 

responded to the administrative judge’s order to provide 

any justification she had for her delay, and the Board 

stated that her filings with the Board failed to address the 

timeliness issue. We have previously found that a “failure 

even to respond to the administrative judge’s order directing [an appellant] to ‘file evidence and argument demonstrating that the appeal was timely filed or that good 

cause exists for the delay’ justified the administrative 

judge’s conclusion that [the] appeal was untimely and 

should be dismissed.” Hubbard v. Merit Sys. Prot. Bd., 

605 F.3d 1363, 1366 (Fed. Cir. 2010). We see no reason to 

reach a different result here.

Ms. Hopson’s submissions to this court identify three

sets of documents that she contends demonstrate the 

timeliness of her appeal or excusable delay for its untimeliness. We disagree. First, she points to several discovery 

filings from the end of 2011, including a deposition notice 

and a set of interrogatories, as evidence that her appeal 

was timely. But those papers establish only that the 

agency was proceeding with the initial phases of discovery

while the Order on Timeliness remained pending. They 

do not establish that the appeal was timely filed or that 

Ms. Hopson had good cause for filing late. Indeed, on 

December 28, 2011, the agency postponed her scheduled 

deposition precisely because of her “apparent failure to 

respond” to the Order on Timeliness issued in November 

2011. 
 CYNTHIA HOPSON v. MSPB 5

Second, Ms. Hopson submits an October 2011 letter 

from the IRS to the administrative judge stating that the 

administrative judge’s Acknowledgement Order, issued 

July 14, 2011, had been “misrouted” by the judge’s office 

and thus arrived at the IRS Office of Chief Counsel late. 

Ms. Hopson argues that the letter proves that her appeal

was misrouted and thus any untimeliness was not her 

fault. That letter, however, concerns only an order entered after the appeal was filed. It has nothing to do with

the initial filing of her appeal on July 5, 2011, or its 

timeliness. 

Finally, Ms. Hopson contends that she in fact filed her 

appeal on time. In support, she relies on a mailing she 

made to the IRS, not to the Board. Specifically, she 

observes that, after receiving the May 2011 removal 

letter, she sent back to the IRS her signed acknowledgement of receipt, in which she passingly stated that she 

intended to appeal, and the IRS received that acknowledgement by June 10, 2011—a date that is within the 30-

day time period. But there is no indication that Ms. 

Hopson argued to the Board that this filing constituted a 

notice of appeal; indeed, the Board stated that she simply 

never responded to the administrative judge’s order to 

show cause on timeliness and that she did not address 

timeliness in her two filings with the Board. In any 

event, a notice of appeal must be timely filed with the 

Board, not the employing agency, except where a complainant has filed “a timely complaint of discrimination” 

with the employing agency, which, if the complaint is a 

“formal” one, postpones filing with the Board until the 

agency has acted on the complaint or for 120 days. 5 

C.F.R. § 1201.154. There is no indication that Ms. Hopson or the IRS, initially or later, treated her June 2011 

mailing as a formal complaint of discrimination to the 

IRS, or that she argued to the Board that it was such a 

complaint. In these circumstances, we see no basis for 

finding an abuse of discretion in applying the usual rule 
6 CYNTHIA HOPSON v. MSPB

that the timeliness of her appeal was to be judged by the 

date on which it was filed with the Board—i.e., July 5, 

2011. That date fell outside the 30-day time period allowed for her appeal, and Ms. Hopson never provided good 

cause for her untimeliness. 

AFFIRMED

COSTS

No costs.