Ralph M. Malone, Petitioner, v. Department of the Treasury, Respondent, 70 F.3d 1290 (Fed. Cir. 1995)

Ralph M. Malone petitions for review of the decision of the Merit Systems Protection Board (MSPB or Board), Docket No. SF531D940835-I-1, dismissing as untimely his appeal to the MSPB. We affirm.

DISCUSSION

From August 19, 1981 through October 22, 1984, Mr. Malone worked as a Taxpayer Service Representative in the IRS's Los Angeles district office. A September 4, 1984 performance evaluation recorded that Mr. Malone's performance with respect to communication skills, a critical element of his job, was unacceptable. Based on this performance evaluation the IRS removed Mr. Malone effective October 22, 1984. Mr. Malone has previously challenged various aspects of the performance appraisal and removal.

Mr. Malone filed a petition with the MSPB on or about September 6, 1994. In the form box captioned "Effective date of the action appealed" he entered "September 5, 1984." On September 13, 1994, the administrative judge (AJ) ordered Mr. Malone to show that his appeal was timely filed or that good cause existed for the apparent ten-year delay. See 5 C.F.R. Secs. 1201.22(c), 1201.56(a) (2) (ii). Mr. Malone did not respond to the order. The AJ, stating that Mr. Malone presented no evidence of good cause for the delay, dismissed his appeal as untimely. See 5 C.F.R. Sec. 1201.22(b).

The full Board denied review of the dismissal. In his appeal to this court Mr. Malone states, inter alia, a concern with the present use of his past personnel records "to obstruct [his] opportunities to compete." However, this asserted new ground was not explained to the administrative judge in response to the order to show cause, and is not available for consideration by this court.

Mr. Malone filed no response to the AJ's order to show cause for his apparent untimely filing. He offered no explanation of his failure to respond, either in his appeal to the full Board or to this court. On the record before the Board we discern no abuse of discretion in the dismissal of Mr. Malone's appeal for untimely filing.