NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3214
JOHN G. CAMPBELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: November 13, 2006
___________________________
Before DYK and PROST, Circuit Judges, and McKINNEY, Chief Judge*.
PER CURIAM.
Petitioner John G. Campbell (“Campbell”) petitions for review of the final order of
the Merit Systems Protection Board (“Board”), dismissing Campbell’s appeal from his
removal as a letter carrier for the United States Postal Service (“USPS”) as untimely.
We affirm.
BACKGROUND
Campbell began working as a carrier technician with the USPS in 1983. Due to
attendance problems, the USPS and Campbell entered into a “Last Chance Agreement”
on January 9, 2004, which instituted a one-year probation period for attendance and
provided for removal in the event of any absence without leave (“AWOL”), more than
*
Honorable Larry J. McKinney, Chief Judge of the United States District
Court for the Southern District of Indiana, sitting by designation.
five unscheduled (i.e. not approved in advance) absences, or any absence without
acceptable documentation. On May 24, 2004, the USPS issued Campbell a Notice of
Proposed Removal for violating the Last Chance Agreement. On June 10, 2004, in
response to this notice, the USPS and Campbell entered into a Second Last Chance
Agreement with the same pertinent provisions as the original one.
The USPS issued yet another Notice of Proposed Adverse Action—Removal on
February 3, 2005, because Campbell had seven unscheduled absences, including six
AWOLs, since the Second Last Chance Agreement was signed. After considering
Campbell’s response, on March 8 the USPS issued a Letter of Decision removing
Campbell from his position effective April 8. Campbell was required to file any appeal to
the Board within 30 days of the effective date of his removal or 30 days after he
received notice of the USPS’s action, whichever was later. 5 C.F.R. § 1201.22(b)(1)
(2006). The Letter of Decision also noted that if Campbell and the USPS “mutually
agree[d] in writing to attempt to resolve this matter through an alternative dispute
resolution process” he would have 60 days after the effective date of his removal to file
his appeal. On April 9 Campbell wrote to the USPS requesting that they enter into an
alternative dispute resolution process.1 The USPS responded on April 28, stating that
“it is the Agency’s decision to not mutually agree to enter into the alternative dispute
resolution process” and that Campbell “should therefore follow any of the appeal rights
outlined in the Notice of Proposed Removal and Letter of Decision.”
1
Although there was some confusion as to when Campbell received the
Letter of Decision, the Board concluded that Campbell clearly had notice of his removal
06-3214 2
On June 8, 2005, Campbell filed his appeal with the MSPB. In response to the
USPS’s motion to dismiss, the Administrative Judge (“AJ”) ordered Campbell to show
cause why his appeal should not be dismissed for untimeliness. On August 9, after
considering Campbell’s response, the AJ entered his initial decision dismissing the
appeal as untimely. Given the April 8 effective date of Campbell’s removal (and his
receipt of the notice on or before the effective date), the AJ concluded that the deadline
for filing an appeal was May 9, 2005, and that the June 8 appeal was untimely by 30
days. The AJ also rejected Campbell’s argument that he had shown good cause for
filing late, concluding that the Letter of Decision and the USPS’s April 28 letter gave him
clear notice of the 30 day deadline. Even if Campbell himself believed he had 60 days
from the effective date of his removal, his appeal was filed 61 days after his removal
under the regulation.
On October 28, 2005, the Board denied Campbell’s petition for review, and the
AJ’s initial decision became the final decision of the Board. Campbell timely filed his
appeal to this court on July 19, 2006. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9) (2000).
DISCUSSION
This court may only set aside a decision of the Board if it was (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). Under the Board’s
regulations, a petition for appeal from an adverse action must be filed within the later of
on or before the effective date, as shown by his April 9 letter. This finding is supported
06-3214 3
30 days of the effective date of the action or 30 days after the employee receives notice
of the action. 5 C.F.R. § 1201.22(b)(1). An untimely appeal to the Board must be
dismissed “unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22(c).
“[W]hether the regulatory time limit for an appeal should be waived based upon a
showing of good cause is a matter committed to the Board's discretion and this court will
not substitute its own judgment for that of the Board.” Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). “The burden is on the petitioner to
demonstrate excusable delay,” which requires a showing of “diligence and ordinary
prudence.” Id.
There is no dispute that Campbell’s appeal was not timely filed since Campbell
received the notice on or before his removal date; the effective date of Campbell’s
removal was April 8; and his appeal was not filed until June 8. However, Campbell
argued before the Board, and appears to argue on appeal, that there was good cause
for excusing his untimeliness. Specifically, Campbell contends that he thought he had
60 days after the effective date in which to file his appeal because he had requested
that the agency agree to enter alternative dispute resolution.
We conclude that the Board did not abuse its discretion in concluding that
Campbell’s confusion about the deadline did not establish the diligence required for
good cause. The Letter of Decision clearly stated that the 60 day period was only
applicable if Campbell and the USPS “mutually agree[d] in writing to attempt to resolve
this matter through an alternative dispute resolution process.” (emphasis added)
Furthermore, the USPS’s April 28 letter was explicit that the USPS did “not mutually
by substantial evidence.
06-3214 4
agree” to alternative dispute resolution, and it proceeded to advise Campbell to pursue
the appeal rights noted in his Letter of Decision. Having concluded that the Board did
not abuse its discretion in finding that Campbell did not act diligently because he had
clear notice of the deadline, we need not consider the Board’s alternative ground that
Campbell was not diligent because his appeal was filed 61 days after the removal,
rather than within the 60 days that he believed he had.
Campbell also appears to argue that the Board abused its discretion when it
failed to consider his medical condition. See Petitioner’s Informal Br. at 1. This court
finds no abuse of discretion in the Board’s conclusion that the record as a whole does
not show good cause.
For the foregoing reasons, the Board’s decision is affirmed.
COSTS
No costs.
06-3214 5