NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ISAAC A. ISAIAH,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-2357

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0752-15-0514-I-1.

______________________ 

Decided: December 9, 2016

______________________ 

ISAAC A. ISAIAH, Tempe, AZ, pro se. 

SARA B. REARDEN, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before PROST, Chief Judge, NEWMAN and LOURIE, Circuit 

Judges.

PER CURIAM. 
 2 ISAIAH v. MSPB

Dr. Isaac A. Isaiah petitions for review of the final decision of the Merit Systems Protection Board (“Board”) in 

Isaiah v. Department of Health and Human Services, 

MSPB Docket No. DE-0752-15-0514-I-1. In its initial 

decision, the Board determined that Dr. Isaiah was not 

discriminated against as he claimed in his petition. In its 

final decision, the Board dismissed Dr. Isaiah’s petition 

for review of the initial decision on the ground that the 

petition for review was untimely. We affirm the Board’s 

final decision. 

I 

Dr. Isaiah was employed as a Medical Officer (General Surgery) with the Indian Health Service, Rosebud 

Service Unit in Rosebud, South Dakota under the Department of Health and Human Services (“Agency”). On 

August 29, 2013, Dr. Isaiah retired from his position. Dr. 

Isaiah then filed an Equal Employment Opportunity

(“EEO”) Complaint with the Agency alleging that his 

retirement was coerced because he was discriminated 

against based on his race, national origin, age, and as 

retaliation for his prior EEO activity. He also alleged 

that he was subjected to a hostile work environment. On 

July 17, 2015, the Agency issued a final agency decision 

finding that Dr. Isaiah was not discriminated against and 

therefore no corrective action was required. Dr. Isaiah 

subsequently filed an appeal with the Board. 

On October 23, 2015, the Board’s administrative judge 

issued an initial decision finding that Dr. Isaiah failed to 

prove by preponderant evidence that his retirement was 

involuntary and dismissed Dr. Isaiah’s appeal for lack of 

jurisdiction. The initial decision stated that the decision

would “become final on November 27, 2015, unless a 

petition for review [was] filed by that date.” Resp’t’s App.

21. 

On December 3, 2015, Dr. Isaiah petitioned the full 

Board to review the administrative judge’s initial deci-
ISAIAH v. MSPB 3

sion. Upon receiving Dr. Isaiah’s petition, the MSPB’s 

Office of the Clerk issued a letter notifying Dr. Isaiah that 

his petition was untimely filed because it was not postmarked or received on or before the November 27 deadline. The Clerk further notified Dr. Isaiah that he may 

file a “Motion to Accept as Timely or to Waive Time Limit” 

and that he must “include a statement, signed under 

penalty of perjury, or . . . an affidavit . . . showing that 

[the] petition was timely filed . . . or that there is good 

cause for the late filing” with the motion. Resp’t’s App.

34. 

In response, Dr. Isaiah’s representative submitted a 

statement that he had received the initial decision on 

October 24, 2015, and attempted to file the petition for 

review on November 27, 2015, by logging into the MSPB

website and following the instructions. The representative further stated that he received data at the end of the 

filing process causing him to believe that the filing was 

complete. However, the filing in fact was not completed 

and the representative received several “notice[s] that 

appeared to indicate that although the filing process had 

been started, it had not been completed.” Resp’t’s App.

31. 

On May 17, 2016, the Board issued its final decision

dismissing Dr. Isaiah’s petition for review as untimely 

filed. The Board found that as a registered e-filer, Dr. 

Isaiah received the initial decision on October 23, 2015, 

and that his petition for review was due thirty-five days 

later, on November 27, 2015. Because Dr. Isaiah filed his 

petition on December 3, 2015, the petition was six days 

late. 

II

On appeal, Dr. Isaiah asks us to reverse the Board’s 

final decision to dismiss his untimely petition for review
 4 ISAIAH v. MSPB

because he has shown good cause for the delay.1 The 

Board may waive the filing deadline for a petition for 

review upon a showing of good cause for the delay. See 5 

C.F.R. § 1201.22. In determining good cause, the Board 

may consider:

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.

Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. 

Cir. 1994). 

“[W]hether the regulatory time limit for an appeal 

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.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 

653 (Fed. Cir. 1992). This court will affirm the Board’s 

decision unless the decision is (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

 

1 Dr. Isaiah also asks us to review the merits of his 

discrimination case. However, “we are powerless to 

consider the merits of his case as he requests. We are not 

a trial court and can function only on the appellate level. 

Our authority is limited to a review of the Board’s decision.” Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 436 

(Fed. Cir. 1986). As such, we limit our review to whether 

the Board properly dismissed Dr. Isaiah’s petition. 
ISAIAH v. MSPB 5

law; (2) obtained without following the procedures required by law; or (3) unsupported by substantial evidence. 

5 U.S.C. § 7703(c).

Here, the Board did not abuse its discretion by declining to excuse Dr. Isaiah’s delay in filing his petition. As

the Board noted, if Dr. Isaiah’s representative attempted 

to file the appeal on November 27 and December 1, 2015, 

without completing either, the e-Appeal system would 

have sent Dr. Isaiah and his representative multiple 

automatically generated email reminders warning him 

that the filing process was not yet completed. Yet, Dr. 

Isaiah failed to take corrective action until six days after 

the deadline. Although a six-day delay is not particularly 

egregious, the Board is well within its discretion to reject 

an untimely petition that is six days late. See, e.g., Rowe,

802 F.2d at 436 (affirming Board’s dismissal of a petition 

filed four days late); Moorman v. Merit Sys. Prot. Bd., 79 

F.3d 1167 (Fed. Cir. 1996) (per curiam) (unpublished 

table decision) (affirming Board’s dismissal of a petition 

filed three days late). The Board also properly found that 

Dr. Isaiah’s counsel was familiar with the e-Appeal system considering the “numerous pleadings he filed through 

e-Appeal below” and could not, therefore, plausibly plead 

ignorance of the e-Appeal system. Resp’t’s App. 5.2 

 

2 The Board also found that Dr. Isaiah failed to 

submit an affidavit stating that he attempted to file the 

appeal on November 27, 2015, and contacted the Board’s 

technical support to resolve technical issues. However, 

Dr. Isaiah did submit a sworn statement to that effect. 

See Resp’t’s App. 31. We thus decline to adopt that factual finding of the Board. However, because this finding 

was only one of three bases on which the Board premised 

its final decision, the Board’s error does not change the 

outcome of this case.
 6 ISAIAH v. MSPB

Accordingly, we find that substantial evidence supports 

the Board’s decision and we affirm the Board’s holding. 

AFFIRMED

COSTS

Each party shall bear their own costs.