Steven P. Pirkkala v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN P. PIRKKALA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1941
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0454-M-1.
______________________
Decided: November 6, 2023
______________________
ALEXA HANSEN, Covington & Burling LLP, San Fran-
cisco, CA, argued for petitioner. Also represented by
ANTONIO J AMES CARVALHO, Washington, DC.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE M ICHELLE SMITH .
______________________
Before CHEN, CUNNINGHAM , and STARK, Circuit Judges.
Case: 22-1941 Document: 46 Page: 1 Filed: 11/06/2023

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PIRKKALA v. MSPB 2
P ER CURIAM .
Steven P. Pirkkala petitions for review of a Merit Sys-
tems Protection Board (“Board”) final order dismissing Mr.
Pirkkala’s appeal of his removal action for being untimely
filed without showing good cause for the delay. Pirkkala v.
Dep’t of Just., No. AT-0752-15-0454-M-1, 2022 WL 1230838
(M.S.P.B. Apr. 26, 2022) (“Final Order”). We affirm.
I. BACKGROUND
On March 27, 2009, the United States Department of
Justice, Federal Bureau of Prisons (“Agency”) removed Mr.
Pirkkala from his Correctional Treatment Specialist posi-
tion at the Federal Correctional Institution in Miami, Flor-
ida. See J.A. 220–23. Six years after his removal, on March
27, 2015, Mr. Pirkkala filed an appeal with the Board chal-
lenging his removal. See Final Order at *1; J.A. 44–47.
In April 2015, the administrative judge notified Mr.
Pirkkala that his appeal appeared to be untimely filed and
directed him to submit evidence and argument demon-
strating that good cause existed for his filing delay. See
Final Order at *1; J.A. 78–83. Mr. Pirkkala submitted
medical evidence indicating that he had sought treatment
for certain medical conditions at various times between his
removal and the filing of his appeal with the Board. See
Final Order at *1. In June 2015, in an initial decision, the
administrative judge dismissed Mr. Pirkkala’s appeal for
lack of jurisdiction without addressing whether the appeal
was timely. See Pirkkala v. Dep’t of Just., No. AT-0752-15-
0454-I-1, 2015 WL 3962202 (M.S.P.B. June 24, 2015); see
also Final Order at *1. The Board vacated the initial deci-
sion in March 2016, finding there was jurisdiction over Mr.
Pirkkala’s appeal, but dismissed the appeal as untimely
filed without showing good cause for the delay. See Pirk-
kala v. Dep’t of Just., No. AT-0752-15-0454-I-1, 2016 WL
1295940, at *1 (M.S.P.B. Mar. 31, 2016) (“First Order”).
Mr. Pirkkala appealed from the Board’s First Order to this
court, and the Board moved unopposed to vacate the First
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PIRKKALA v. MSPB 3
Order in part and remand the case for further considera-
tion in view of certain medical evidence not considered by
the Board. See J.A. 651–53. This court granted the Board’s
motion and remanded Mr. Pirkkala’s appeal to the Board
for further consideration in April 2017. See id.
On remand, the Board considered Mr. Pirkkala’s med-
ical evidence and again dismissed the appeal as untimely
filed without showing good cause for the delay. See Final
Order at *1, *4. Specifically, within the period of delay, the
Board found that Mr. Pirkkala failed to show good cause
from August 27, 2009 through December 7, 2009, and from
February 9, 2010 through March 27, 2010. Id. at *2–4. Mr.
Pirkkala now appeals from the Board’s final order, and we
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. D ISCUSSION
“We affirm a decision of the Board unless it is found to
be arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; obtained without proce-
dures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence.” Ford-
Clifton v. Dep’t of Veterans Affs., 661 F.3d 655, 658–59
(Fed. Cir. 2011) (citing 5 U.S.C. § 7703(c)).
An appeal to the Board must be filed no later than
thirty days after the effective date of the action being ap-
pealed or thirty days after the date of receipt of the agency’s
decision, whichever is later. See 5 C.F.R. § 1201.22(b)(1).
This time limit may be waived if the petitioner demon-
strates good cause for such waiver. See id. §§ 1201.22(c),
1201.12; see also Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc). “[W]hether the regula-
tory 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, 966 F.2d at 653
(collecting cases). “To demonstrate on appeal that the
Board abused its discretion,” the petitioner “bears a heavy
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PIRKKALA v. MSPB 4
burden.” Ford-Clifton, 661 F.3d at 659 (internal quotation
marks and citation omitted).
“The Board has held that when petitioners allege delay
for medical reasons,” as is the case here, “they must affirm-
atively identify medical evidence that addresses the entire
period of delay and explain how the illness prevented a
timely filing.” Ford-Clifton, 661 F.3d at 659 (first citing
Jerusalem v. Dep’t of Air Force, No. AT-0752-88-0195-I-1,
2008 WL 238455 (M.S.P.B. Jan. 28, 2008), aff’d sub nom.
Jerusalem v. Merit Sys. Prot. Bd., 280 F. App’x 973 (Fed.
Cir. 2008); and then citing Lacy v. Dep’t of the Navy, No.
SF-0752-97-0367-I-1, 1998 WL 300878 (M.S.P.B. June 2,
1998)).
On appeal, the parties do not dispute that Mr. Pirk-
kala’s March 27, 2015 appeal of his March 27, 2009 re-
moval was untimely. See Pet’r’s Br. 15; Resp’t’s Br. 18.
Rather, the dispute concerns the Board’s good cause deter-
mination. See Pet’r’s Br. 15–16; Resp’t’s Br. 18–19. Mr.
Pirkkala argues that the Board abused its discretion in
failing to consider “ample medical evidence” and in finding
no good cause to excuse his filing delay for the following
time periods: August 27, 2009 through December 7, 2009,
and February 9, 2010 through March 27, 2010. Pet’r’s Br.
15–16; see also id. at 21–35. Mr. Pirkkala contends that
his medical evidence concerning various physical and men-
tal health conditions showed good cause for delay for these
two time periods. See Pet’r’s Br. 15–16; see also id. at 21–
35.
Focusing on the first time period of August 27, 2009
through December 7, 2009, Mr. Pirkkala’s medical evi-
dence indicates that he has had a history of health condi-
tions. See, e.g., J.A. 477–83. However, because Mr.
Pirkkala “allege[s] delay for medical reasons,” he must “ex-
plain how the illness prevented a timely filing.” Ford-Clif-
ton, 661 F.3d at 659 (citations omitted). Substantial
evidence supports the Board’s finding that Mr. Pirkkala
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PIRKKALA v. MSPB 5
failed to provide such an explanation. The Board found
that Mr. Pirkkala did “not present[] evidence of the exist-
ence of circumstances beyond his control that affected his
ability to file or of unavoidable casualty or misfortune
which similarly shows a causal relationship to his inability
to file his Board appeal for the 3-month period of time be-
tween August and December 2009.” Final Order at *4. In-
deed, the Board found that Mr. Pirkkala’s ability to file an
unfair labor practice complaint against his union with the
Federal Labor Relations Authority during this first time
period contradicts his contention that his conditions pre-
vented him from timely filing his removal appeal.1 See Fi-
nal Order at *3–4; J.A. 237–38, 581; Burton v. Merit Sys.
Prot. Bd., No. 00-3140, 2000 WL 767851, at *2 (Fed. Cir.
2000) (finding that the “Board did not abuse its discretion
in dismissing [Petitioner’s] untimely appeal” because “de-
spite [Petitioner’s] mental condition and his medication
regimen, he nonetheless was able to conduct a number of
sophisticated legal or legal-related activities, including . . .
filing an equal employment opportunity complaint in fed-
eral district court (after he was removed from the agency
but before his appeal to the Board was due) . . . .”). This
finding is supported by substantial evidence.
Accordingly, the Board did not abuse its discretion in
finding that Mr. Pirkkala failed to show that his health
conditions “prevented him from appealing his removal be-
tween August and December 2009.” Final Order at *4 (ci-
tation omitted); see Ford-Clifton, 661 F.3d at 659. Because
1 Mr. Pirkkala pursued his unfair labor practice
complaint until at least July 2010. See J.A. 238, 255; see
also Final Order at *3 n.7. Such activity partially over-
lapped with Mr. Pirkkala’s pursuit of disability retirement
benefits with the Office of Personnel Management, which
he initiated at some point prior to March 27, 2010. See Fi-
nal Order at *2 & n.4.
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PIRKKALA v. MSPB 6
Mr. Pirkkala must “address[] the entire period of delay”
and he failed to show that the Board’s findings for the first
disputed time period lacked substantial evidence, we need
not reach the second disputed time period of February 9,
2010 through March 27, 2010. See Ford-Clifton, 661 F.3d
at 659 (citations omitted). We therefore affirm the Board’s
dismissal of Mr. Pirkkala’s appeal as untimely filed and its
determination that he failed to establish good cause for the
delay. See Final Order at *4 (citation omitted); Ford-Clif-
ton, 661 F.3d at 659 (“affirm[ing] the Board’s determina-
tion that good cause was not shown to excuse Petitioner’s
filing delay” because “as the Board properly found, there
[wa]s no accompanying explanation of how [Petitioner’s]
condition prevented a timely filing”).
III. CONCLUSION
We have considered Mr. Pirkkala’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s final order.
AFFIRMED
COSTS
No costs.
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