Jackson v. U.S. Postal Service, 81-4184

• Decision Date: 25 January 1982
• Docket Number: No. 81-4184,81-4184
• Citation: 666 F.2d 258
• Parties: James JACKSON, Jr., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 258

666 F.2d 258

James JACKSON, Jr., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 81-4184

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 25, 1982.

Frank Pola, Jr., New Orleans, La., for petitioner.

Karen Intrater, Stephen E. Alpern, U.S. Postal Service, Washington, D.C., John P. Volz, U. S. Atty., Elizabeth A. O'Connell, Asst. U. S. Atty., New Orleans, La., for respondent.

Petition for Review of an Order of the Merit Systems Protection Board.

Before GEE, GARZA and TATE, Circuit Judges.

PER CURIAM:

Petitioner James Jackson, Jr., seeks review of the decision of the Merit System Protection Board (MSPB) sustaining his removal from the Postal Service. Jackson, a preference eligible employee, was removed from the position of carrier with the United States Postal Service effective February 27, 1980, for failure to meet the physical requirements of his position. Jackson's request for a permanent light duty assignment was denied.

Jackson began work as a mail carrier for the Postal Service on April 9, 1977. As a carrier, Jackson was required to climb stairs, to do excessive walking, standing, and bending, and to lift weights in excess of 50 to 60 pounds. On January 10, 1980, Jackson submitted a request for permanent light duty assignment supported by a physician's statement advising that the petitioner could not perform the above listed duties. This medical statement was substantially relied on to support the removal action. In this appeal, petitioner claims that the United States Postal Service violated its own rules and the letter carriers' collective bargaining agreement when the Service terminated him. Petitioner also claims that the Service acted in an arbitrary and capricious manner.

Jurisdiction

The Postal Service asserts that this court is without jurisdiction to entertain Jackson's petition because it was not filed within the 30-day period prescribed by 5 U.S.C. § 7703(b)(1). ¹ Jackson received notice of the final opinion and order of the MSPB on April 16, 1981, and filed this appeal on May 18, 1981. The thirtieth day of the appeal period fell on the preceding Saturday, May 16. Rule 6(a) of the Federal Rules of Civil Procedure provides that in computing any period of time prescribed by the Federal Rules, if the end of the period is a Saturday, Sunday or holiday, the period runs until the end of the next day that is not a weekend or holiday. ² This court has consistently used Rule 6(a)'s method of computing federal statutory time limitations. Lawson v. Conyers Chrysler, Plymouth, Etc., 600 F.2d 465, 466 (5th Cir. 1979). Because the thirtieth day fell on a Saturday, the period ran through the following Monday, and this court therefore has jurisdiction of the appeal.

Abuse of Discretion

Jackson charges that to dismiss him was arbitrary and capricious because it did not best promote the efficiency of the Service, as commanded by 5 U.S.C. § 7513(a). ³ We disagree. The petitioner's testimony relative to his medical condition and the statements submitted by his physician as contained in the record are uncontroverted and establish by a preponderance of evidence that petitioner could not perform duties involving excessive climbing, walking, standing, bending, or heavy lifting, which are the requirements for the position of mail carrier. The removal of an employee whose physical condition renders him incapable of performing the duties of his position is recognized as constituting such cause as will promote the efficiency of service. Piccone v. United States, 407 F.2d 866, 872 (Ct.Cl.1969). Jackson had submitted the medical statement, hoping for a permanent transfer to light duty, but he acknowledged that there was a requirement of five years of service prior to becoming eligible for such a transfer. ⁴ Since he did not have the five years of required service and the evidence proves that he could not physically handle the position of mail carrier, the Service did not abuse its discretion when Jackson was terminated.

Issues Not Raised Below

Jackson contends that the MSPB decision sustaining his removal should be overturned because the Postal Service violated certain rights under Article VIII of the collective bargaining agreement and under the Veterans Preference Act, 5 U.S.C. §§ 3309 through 3316, 3351, 3363 and 3504. These allegations were not asserted by Jackson prior to this appeal. An appellate court does not give consideration to issues not raised below, except in exceptional cases to prevent an injustice. Hormel v. Helvering, 312 U.S. 552, 553, 555-56, 61 S.Ct. 719, 720-721, 85 L.Ed. 1037 (1944). This is not one of those exceptional cases. As discussed above, the evidence supports that Jackson's removal was for "such cause as will promote the efficiency of the Service." Further, Jackson's contentions of procedural errors are without merit. First, Jackson's removal did not violate the "spirit" of the Veterans Preference Act as embodied in 5 U.S.C. §§ 3309-3316, 3351 and 3363, since none of these provisions governs removal actions. ⁵ Second, the record contains no evidence that Jackson has a service-connected disability of 30% or more so as to bring him within the coverage of section 3504(b). ⁶ Finally, the monthly review of Jackson's temporary light duty status was not in violation of the National Agreement, which provides for mandatory annual review and allows for more frequent review at the discretion of the installation head. ⁷

Conclusion

We conclude that there is no exceptional reason to consider issues not raised below, and therefore, having found no abuse of discretion, the judgment of the MSPB is

AFFIRMED.

1 5 U.S.C. § 7703 provides, in pertinent part:

Judicial review of decisions of the Merit Systems Protection Board

(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.

(2) The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.

(b)(1) Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28. Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. (emphasis supplied).

...