Isaac A. Isaiah v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.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
______________________
I SAAC A. I SAIAH , Tempe, AZ, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. P OLISUK.
______________________
Before P ROST , Chief Judge, N EWMAN and L OURIE, Circuit
Judges.
P ER CURIAM .

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ISAIAH v. MSPB 2
Dr. Isaac A. Isaiah petitions for review of the final de-
cision 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 (Gen-
eral Surgery) with the Indian Health Service, Rosebud
Service Unit in Rosebud, South Dakota under the De-
partment 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-

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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 post-
marked or received on or before the November 27 dead-
line. 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 representa-
tive 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

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ISAIAH v. MSPB 4
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 no-
tified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the con-
trol 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 show-
ing 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 deci-
sion.” 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.

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ISAIAH v. MSPB 5
law; (2) obtained without following the procedures re-
quired by law; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c).
Here, the Board did not abuse its discretion by declin-
ing 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 sys-
tem 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 factu-
al 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.

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ISAIAH v. MSPB 6
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.

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