Beverly D. Trotter-Low v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BEVERLY D. TROTTER-LOW,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3147
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0845-15-0145-I-1.
______________________
Decided: November 6, 2015
______________________
BEVERLY D. T ROTTER -L OW, Buda, TX, 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 M OORE, O’MALLEY , and CHEN, Circuit Judges.

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TROTTER- LOW v. MSPB 2
P ER CURIAM
Beverly Trotter-Low appeals from a Merit Systems
Protection Board (“Board”) decision dismissing her appeal
as untimely filed. Because the Board’s dismissal is not
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, we affirm.
BACKGROUND
Ms. Trotter-Low receives annuity benefits under the
Federal Employees Retirement System. Because the
Office of Personnel Management (“OPM”) had not adjust-
ed her annuity based on her receipt of a Social Security
Disability Insurance Benefit, it calculated that it overpaid
her $29,320 for the period from July 1, 2010 to April 30,
2014. It informed Ms. Trotter-Low that it intended to
collect this overpayment by deducting monthly install-
ments from her annuity. Ms. Trotter-Low timely request-
ed reconsideration of the OPM’s decision.
On September 30, 2014, the OPM sent Ms. Trotter-
Low a letter denying her request for reconsideration. The
OPM rejected Ms. Trotter-Low’s offer to repay a lesser
amount, finding it unreasonable. The OPM did conclude
that the original repayment schedule would cause Ms.
Trotter-Low financial hardship and set a new repayment
schedule to begin January 1, 2015 absent a timely filed
appeal with the Board. The letter included a paragraph
titled “Appeal Rights,” which explained that Ms. Trotter-
Low must file any Board appeal “within 30 calendar days
from the date of this letter, or from receipt of this letter,
whichever is later.” Resp’t App. (“R.A.”) at 46. As evi-
denced by a Certified Mail tracking receipt, Ms. Trotter-
Low received the OPM letter on October 4, 2014. Thus,
the deadline for Ms. Trotter-Low to file an appeal was
November 3, 2014.
On December 11, 2014, the Board received an appeal
from Ms. Trotter-Low. While Ms. Trotter-Low signed the

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TROTTER- LOW v. MSPB 3
appeal form on October 31, 2014, the envelope in which it
was mailed is postmarked December 2, 2014. In re-
sponse, the Board mailed Ms. Trotter-Low an Order on
December 24, 2014, explaining that there was a question
regarding whether her appeal was untimely and should
be dismissed. The Order stated that if Ms. Trotter-Low
did not file her appeal on time she should “file evidence
and/or argument showing that good cause exists for the
delay in filing” and explained what constitutes “good
cause.” R.A. at 13. Ms. Trotter-Low did not respond to
this Order. On February 26, 2015, the Board dismissed
Ms. Trotter-Low’s appeal as untimely filed. Ms. Trotter-
Low timely appealed to this Court. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Whether the regulatory time limit for filing an appeal
to the Board should be waived based on a showing of good
cause is committed to the Board’s discretion. Mendoza v.
Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir.
1992) (en banc). “[W]e will disturb the grant or denial of
such a waiver only if it is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the
law.” Id. (citing 5 U.S.C. § 7703(c)).
On appeal, Ms. Trotter-Low only argues the merits of
her case—that the four years it took the OPM to process
her paperwork was unreasonable and caused her severe
financial and personal hardship. She does not address
whether there was good cause for her delay in filing her
Board appeal. As the Board explained in its December 24,
2014 Order, the burden is on Ms. Trotter-Low to come
forward with evidence or argument explaining that good
cause existed for her untimely filing. Ms. Trotter-Low did
not respond to the Board’s Order. Under the facts pre-
sented, we cannot say the Board abused its discretion in
dismissing her appeal as untimely filed. Id. at 653–64
(holding that the Board did not abuse its discretion by

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TROTTER- LOW v. MSPB 4
dismissing an untimely appeal where the appellant failed
to respond to a Board order to show cause).
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
AFFIRMED
COSTS
No costs.

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