Rick R. Loudermelt, Petitioner, v. Department of Defense, Respondent, 930 F.2d 38 (Fed. Cir. 1991)

Rick R. Loudermelt (Loudermelt) appeals the decision of the Merit Systems Protection Board (Board), SL07529010164, dismissing as untimely his appeal from his removal as a Quality Assurance Specialist. The Board denied review, stating that the petition did not meet the criteria for review of 5 C.F.R. Sec. 1201.115. The decision of the Administrative Judge (AJ) therefore became the final decision of the Board. Id. Sec. 1201.113(b). We affirm.

OPINION

Loudermelt was terminated, effective January 4, 1985, because he declined to accept a directed reassignment. He was informed of his right to appeal to the Board within 20 days of the effective date of his termination.

The Board was first notified of Loudermelt's appeal on February 5, 1990. In the light of the five year delay in filing his appeal, Loudermelt was given an opportunity to demonstrate why his untimeliness should be excused. The AJ found that the five-year delay in filing an appeal could not be excused by petitioner's medical difficulties, his inability to obtain legal counsel, or his exploration of other avenues of redress.

We review the Board's decision to determine if it is arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. 5 U.S.C. § 7703(c).

The Board's decision dismissing petitioner's appeal as untimely was not arbitrary, capricious, or an abuse of discretion. It was supported by substantial factual evidence demonstrating that in spite of his alleged medical problems asserted as reasons for the untimely appeal, petitioner was able to seek assistance from various congressmen, a newspaper, and a whistleblower project during the five year period following his termination.

Because Loudermelt failed to demonstrate good cause for waiving the time for appeal, the Board correctly dismissed his appeal.