Penny J. Reynolds v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PENNY J. REYNOLDS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-2021
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0841-20-0198-I-1.
______________________
Decided: March 15, 2021
______________________
PENNY J. R EYNOLDS , Jackson, KY, pro se.
K ATHERINE M ICHELLE S MITH , Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
TRISTAN L. LEAVITT.
______________________
Before M OORE, SCHALL, and TARANTO , Circuit Judges.
PER C URIAM.
Case: 20-2021 Document: 38 Page: 1 Filed: 03/15/2021

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REYNOLDS v. MSPB 2
Penny Reynolds appeals a final decision of the Merit
Systems Protection Board dismissing her appeal as un-
timely filed without a showing of good cause for the delay.
Reynolds v. Office of Pers. Mgmt., No. CH-0841-20-0198-I-
1, 2020 WL 1915789 (M.S.P.B. Apr. 17, 2020). Ms. Reyn-
olds argues that the Board failed to consider the merits of
her case seeking recalculation of her income for purposes
of receiving disability benefits. Because the Board did not
abuse its discretion in considering whether Ms. Reynolds
had good cause for her belated filing, we affirm.
BACKGROUND
On January 29, 2019, the Office of Personnel Manage-
ment (OPM) sent Ms. Reynolds an initial decision letter in-
forming her she was no longer eligible for her disability
retirement benefits because she exceeded statutory income
limits. OPM informed Ms. Reynolds that she had 30 days
from the date of the initial decision letter to request recon-
sideration.
On April 5, 2019, Ms. Reynolds requested reconsidera-
tion, citing a variety of reasons for missing the 30-day
deadline. OPM dismissed that request as untimely and in-
formed Ms. Reynolds that she could appeal within 30 days.
Ms. Reynolds appealed to the Board on February 3,
2020. That same day, the Board issued a Timeliness Order
giving Ms. Reynolds 10 days to file evidence or argument
showing she appealed on time or had good cause for her
delay. Ms. Reynolds never responded, so an administrative
judge granted OPM’s motion to dismiss. On May 22, 2020,
the administrative judge’s decision became the final Board
decision. Ms. Reynolds appeals. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9).
D ISCUSSION
“We review the Board’s good cause determination for
abuse of discretion.” Kerr v. Merit Sys. Prot. Bd., 908 F.3d
1307, 1311 (Fed. Cir. 2018) (citing Herring v. Merit Sys.
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REYNOLDS v. MSPB 3
Prot. Bd., 778 F.3d 1011, 1013 (Fed. Cir. 2015)). “If a party
does not submit an appeal within the time set by statute,
regulation, or order of a judge, it will be dismissed as un-
timely filed unless a good reason for the delay is shown.”
5 C.F.R. § 1201.22(c). To show good reason for delay, the
appellant must show she exercised “diligence or ordinary
prudence” under the circumstances. Kerr, 908 F.3d at 1311
(quoting Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653
(Fed. Cir. 1992) (en banc)).
We discern no abuse of discretion in the Board’s deter-
mination that Ms. Reynolds failed to show good cause for
her delay in appealing OPM’s dismissal. Ms. Reynolds
filed her appeal nine months late and never responded to
the Board’s Timeliness Order requiring her to file evidence
or argument showing good cause. The Board explained
that “failure to follow straightforward instructions, and
failure to file in accordance with such unambiguous in-
structions, constitute[d] failure to exercise due diligence or
ordinary prudence.” S.A. 5. The Board did not abuse its
discretion in dismissing Ms. Reynolds’ untimely appeal.
CONCLUSION
Accordingly, we affirm the decision of the Board.
AFFIRMED
COSTS
No costs.
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