Phillips v. U.S. Postal Service, No. 30-81
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
| Writing for the Court | Before FRIEDMAN, BALDWIN and NIES; BALDWIN |
| Citation | 695 F.2d 1389 |
| Parties | G.K. PHILLIPS, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. Appeal |
| Docket Number | No. 30-81 |
| Decision Date | 23 December 1982 |
Page 1389
v.
UNITED STATES POSTAL SERVICE, Respondent.
Federal Circuit.
Leonard Leeds, Mineola, N.Y., argued for petitioner. With him on the brief was David S. Heller, Mineola, N.Y. Jack B. Solerwitz, Mineola, N.Y., was attorney of record.
Glenn E. Harris, New York City, argued for respondent. With him on the brief was Asst. Atty. Gen. J. Paul McGrath. Sherry A. Cagroli and Lori Joan Dym, Washington, D.C., of counsel.
Before FRIEDMAN, BALDWIN and NIES, Circuit Judges.
BALDWIN, Circuit Judge.
This appeal is from the Merit Systems Protection Board's (board) decision not to waive the regulatory time limit for filing an appeal from a removal action. The board determined that the appellant had not shown good cause for a waiver of the time limit and therefore dismissed the appeal. We affirm.
Background
Mr. Phillips was officially removed from his position as a postal inspector for the United States Post Office on August 8, 1980. A decision letter from the board dated July 28, 1980, notified Mr. Phillips of the August 8 removal date and of his right to appeal within twenty days of the removal
Page 1390
date. 1 The decision letter further explained that Mr. Phillips would lose his right to appeal if he did not do so within the twenty-day time period. On September 3, 1980, six days after the time for appeal had expired, appellant's attorney posted a letter to the board appealing the August 8 removal.The board informed Mr. Phillips' attorney that the appeal was untimely and of his client's right to submit evidence and arguments that would show good cause for waiving the regulatory time limit. To establish good cause for the delay, appellant's attorney submitted an affidavit stating that the decision letter was received by the attorney's law firm on August 4, 1980. The attorney reviewed the notice on August 10, 1980, upon his return from vacation and requested written documentation from Mr. Phillips regarding his defenses to the removal action. On August 16, 1980, Mr. Phillips sent an envelope containing the requested information by express mail post office to post office, although he knew the attorney's address. The envelope arrived at the appropriate post office on August 18 but the postal authorities did not contact Mr. Phillips' attorney until the end of August. The letter appealing Mr. Phillips' removal was posted after the Labor Day holiday on September 3, 1980.
Our consideration of this case is limited to whether the board's 2 decision not to waive the regulatory time limit was arbitrary, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 7703(c) (Supp. IV 1980). Appellant does not suggest that the board failed to follow appropriate procedures or that the procedures followed were unfair. There is no assertion that the board's determination was not supported by substantial evidence. Rather,...
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Wilder v. Prokop, No. 84-2540
...delay was excusable under the circumstances where diligence or ordinary prudence was exercised. Phillips v. United States Postal Service, 695 F.2d 1389, 1391 (Fed.Cir.1982) (citing Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180 (1980)). Though decided after Wilder's decis......
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Lindahl v. Office of Personnel Management, No. 39-81
...or decisions "issued by the Board under section 7701" and those to be followed in review of other MSPB decisions. See Phillips v. USPS, 695 F.2d 1389, 1390 n. 2 (Fed.Cir.1982). Thus the MSPB has not one but a plurality of jurisdictional bases for its actions, and it is important to see what......
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Carroll v. Department of Employment Sec., No. 1-07-2267.
...Board allow a judge to waive the appeal deadline based upon a party's showing of good cause. Phillips v. United States Postal Service, 695 F.2d 1389, 1391 (Fed.Cir.1982). Furthermore, this court has consistently held that equitable defenses do not apply to jurisdictional determinations. Van......
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Krizman v. Merit Systems Protection Bd., No. 95-3288
...is shown." 5 C.F.R. § 1201.22(c). The appellant bears the burden of establishing good cause, Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed.Cir.1982), and this court will overturn the Board's finding of no good cause only if the petitioner establishes that the Board's deci......
-
Wilder v. Prokop, No. 84-2540
...delay was excusable under the circumstances where diligence or ordinary prudence was exercised. Phillips v. United States Postal Service, 695 F.2d 1389, 1391 (Fed.Cir.1982) (citing Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180 (1980)). Though decided after Wilder's decis......
-
Lindahl v. Office of Personnel Management, No. 39-81
...or decisions "issued by the Board under section 7701" and those to be followed in review of other MSPB decisions. See Phillips v. USPS, 695 F.2d 1389, 1390 n. 2 (Fed.Cir.1982). Thus the MSPB has not one but a plurality of jurisdictional bases for its actions, and it is important to see what......
-
Carroll v. Department of Employment Sec., No. 1-07-2267.
...Board allow a judge to waive the appeal deadline based upon a party's showing of good cause. Phillips v. United States Postal Service, 695 F.2d 1389, 1391 (Fed.Cir.1982). Furthermore, this court has consistently held that equitable defenses do not apply to jurisdictional determinations. Van......
-
Krizman v. Merit Systems Protection Bd., No. 95-3288
...is shown." 5 C.F.R. § 1201.22(c). The appellant bears the burden of establishing good cause, Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed.Cir.1982), and this court will overturn the Board's finding of no good cause only if the petitioner establishes that the Board's deci......