Vicky J. Barrera-Garcia v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICKY J. BARRERA-GARCIA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1610
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-23-0291-I-2.
______________________
Decided: December 5, 2025
______________________
CHRISTOPHER D. VAUGHN, The Vaughn Law
Firm, LLC, Decatur, GA, for petitioner.
ELIZABETH W. F LETCHER , Office of the General
Counsel, Merit Systems Protection Board, Washington,
D.C., for respondent. Also represented by ALLISON J.
BOYLE, K ATHERINE M. SMITH .
______________________
Case: 25-1610 Document: 30 Page: 1 Filed: 12/05/2025

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BARRERA-G ARCIA V. MSPB 2
Before L OURIE and STOLL , Circuit Judges, and O ETKEN,
District Judge.1
P ER CURIAM .
Former Department of the Army (“DOA”) employee
Vicky J. Barrera-Garcia petitions for review of a final
decision of the Merit Systems Protection Board (“the
Board”) dismissing her appeal as untimely filed without
good cause in DA-0752-23-0291-I-2. J.A. at 2.2 For the
following reasons, we affirm.
BACKGROUND
On April 3, 2023, the DOA, via letter, removed Barrera-
Garcia from her position as an Occupational Therapy
Assistant effective immediately based on allegations of
“falsification of timecard and lack of candor.” J.A. at 11,
34–35. The Standard Form (“SF”) documenting her
removal, however, stated the effective date was April 5,
2023. Id. The United States Postal Service tracking record
reflects that Barrera-Garcia received the notice on April 5,
2023. Id. at 12.
On May 11, 2023, Barrera-Garcia filed an appeal with
the Board. Id. In an initial decision, an administrative
judge (“AJ”) dismissed the appeal as untimely filed. Id. at
10. The AJ explained that, per 5 C.F.R. § 1201.22(b),
Barrera-Garcia was required to file her appeal with the
Board by May 5, 2023—one month after she received notice
of her termination. Id. at 12–13. Because her appeal was
filed after the deadline without good cause for delay, id. at
13–17, the AJ dismissed the appeal as untimely filed. Id.
at 18. The Board then affirmed the AJ, adopting her initial
decision as its final decision. Id. at 2.
1 Honorable J. Paul Oetken, District Judge, United
States District Court for the Southern District of New
York, sitting by designation.
2 J.A. refers to the Joint Appendix filed at ECF No. 17.
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BARRERA-G ARCIA V. MSPB 3
Barrera-Garcia now appeals to this court. Both parties
waived oral argument. ECF Nos. 26, 27. We have
jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
D ISCUSSION
Generally, “an appeal [to the Board] must be filed no
later than 30 days after the effective date, if any, of the
action being appealed, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is
later.” 5 C.F.R. § 1201.22(b)(1). “If a party does not submit
an appeal [to the Board] within the time set by statute,
regulation, or order of a [Board] judge, it will be dismissed
as untimely filed unless a good reason for the delay is
shown.” Id. § 1201.22(c).
Based on the effective date of dismissal of April 5, 2023,
and Barrera-Garcia’s receipt of the decision on the same
date, Barrera-Garcia’s deadline for appeal to the Board
was May 5, 2023, 30 days thereafter. See
id. § 1201.22(b)(1). Barrera-Garcia filed her appeal with
the Board on May 11, 2023. J.A. at 11. Therefore, for her
appeal to not be dismissed for untimeliness, Barrera-
Garcia is required to establish good cause for the delay. See
5 C.F.R. § 1201.22(c).
“The appellant bears the burden of establishing ‘good
cause’ for the delay.” Kerr v. Merit Sys. Prot. Bd.,
908 F.3d 1307, 1311 (Fed. Cir. 2018) (quoting 5 C.F.R. §
1201.56(b)(2)(i)). “To establish good cause for a filing delay,
an appellant must show that the delay was excusable
under the circumstances and that [she] exercised due
diligence in attempting to meet the filing deadline.”
Herring v. Merit Sys. Prot. Bd., 778 F.3d 1011, 1017 (Fed.
Cir. 2015) (citations and quotation marks omitted). “The
decision to waive the time limit to appeal to the Board is
committed to the discretion of the Board, and is reversed
only for abuse of that discretion.” Id. at 1013.
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BARRERA-G ARCIA V. MSPB 4
To evaluate whether a petitioner has demonstrated
good cause for delay, we look to a variety of nonexclusive
criteria, including:
[T]he length of the delay; whether appellant was
notified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the
control 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
showing 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.
Id. at 1013–14 (citations and quotation omitted).
Before the AJ, Barrera-Garcia argued that she was
confused as to the effective date of termination. See J.A. at
14–15. She also argued that her attorney gave her the
incorrect date for her filing deadline and that her untimely
filing was due to an illness. Id. at 14–16. The AJ rejected
those arguments because Barrera-Garcia (1) had clear
notice of the effective date of her removal via her SF
document; and (2) did not provide evidence that her
attorney’s advice or her illness affected her ability to file an
appeal by May 5, 2023. Id. The AJ also found her period
of delay was not minimal, citing a previous Board decision
determining that a delay of nine days was not minimal. Id.
at 16–17. The AJ accordingly determined that Barrara-
Garcia had not established good cause to excuse her delay.
Id. at 18. As indicated, the Board affirmed the AJ and
adopted her decision as its final decision. Id. at 2.
On appeal, Barrera-Garcia argues the Board, in
affirming the AJ’s decision, abused its discretion because
the length of delay was minimal and her appeal was
“thwarted by [her] counsel’s negligence.” Pet’r Br. at 5–6.
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BARRERA-G ARCIA V. MSPB 5
But, as just recounted, the AJ already considered and
rejected these arguments, and provided a reasonable
explanation for doing so. Accordingly, the AJ’s conclusion,
and the Board’s affirmance, was not an abuse of discretion
such that we will disturb the findings. See Womack v.
Merit Sys. Prot. Bd., 798 F.2d 453, 456 (Fed. Cir. 1986)
(finding no abuse of discretion where the Board considered
the factual bases for delay and reasonably found them
unavailing).
CONCLUSION
We have considered Barerra-Garcia’s remaining
arguments and find them unpersuasive. For the foregoing
reasons, we affirm the Board’s dismissal of Barrera-
Garcia’s appeal as untimely filed without good cause.
AFFIRMED
COSTS
The parties shall bear their own costs.
Case: 25-1610 Document: 30 Page: 5 Filed: 12/05/2025

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