Phillips v. U.S. Postal Service
| Decision Date | 23 December 1982 |
| Docket Number | No. 30-81,30-81 |
| Citation | 695 F.2d 1389 |
| Parties | G.K. PHILLIPS, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. Appeal |
| Court | U.S. Court of Appeals — 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.
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.
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 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.
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
OPINION
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, appellant argues that the equities weigh so heavily in the appellant's favor that the board's decision should be reversed for being arbitrary or capricious.
Whether the regulatory time limit for an appeal should be waived in a particular case is a matter committed to the board's discretion and this court will not substitute its own judgment for that of the board. The statutory provisions for appeals to the board give the board broad discretion in handling appeals and controlling its own docket by requiring that appeals be processed in accordance with regulations prescribed by the board. 5 U.S.C. Sec. 7701(a) (1980). The board has issued regulations that require an appeal to be filed within twenty days of the date a removal action is effective. 5 CFR 1201.22(b) (1980). This twenty-day time period may be waived by a presiding official if good cause is shown, placing the burden on the appellant to show a reasonable excuse for a delay in filing an appeal. 5 CFR 1201.12 (1980).
The board has held that to establish good cause, the appellant need not show that it was impossible to file timely, only that the delay was excusable under the circumstances where diligence or ordinary prudence had been exercised. Alonzo v. Department of the Air Force, MSPB DA0752089131 (November 24, 1980). After carefully considering the facts presented in the affidavit from Mr. Phillips' attorney, the board found that no adequate reason was presented to explain why a law firm that received notice on August 4, 1980, of the impending termination did not perfect an appeal by August 28, 1980. The inexcusable lack of diligence by appellant's attorney,...
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