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
05-3097
DWAINE PRICE, SR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: May 6, 2005
___________________________
Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
RADER, Circuit Judge.
On June 4, 1982, the Merit System Protection Board (Board) issued an initial
decision affirming the agency’s decision to remove Dwaine Price, Sr., for assaulting his
supervisor. Price v. U.S. Postal Serv., No. SF-0752-82-10497, slip op. at 7 (MSPB June
4, 1982) (Initial Decision). Mr. Price now seeks review of the order of the Board
dismissing his petition for review as untimely because it was filed more than twenty-one
years after the Board’s initial decision. Price v. U.S. Postal Serv., No.
SF-0752-82-0497-I-1, slip op. at 5 (MSPB Nov. 24, 2004) (Board Dismissal). Because
the Board did not abuse its discretion in dismissing Mr. Price’s petition for review as
untimely, this court affirms.
Mr. Price was removed from his Full-time Carrier position with the United States
Postal Service (agency) on January 13, 1982, for allegedly assaulting his supervisor. Mr.
Price petitioned the Board for reinstatement with back pay, but on June 4, 1982, the
Board denied his petition and affirmed the agency’s decision to remove him. Initial
Decision at 7. The Board’s decision explained that the Initial Decision would become final
on July 9, 1982, unless a petition for review was filed before that date. Id. at 8.
Mr. Price took no action until he petitioned the Board to reopen his case on
February 8, 2004.
The question presented to this court does not concern the merits of Mr. Price’s
petition, but whether the Board appropriately denied Mr. Price’s petition for review as
untimely. See Wallace v. Merit Sys. Prot. Bd., 728 F.2d 1456, 1459 (Fed. Cir. 1984) (“The
sole issue is the correctness of the MSPB decision holding the appeal to the board was
untimely, which in no way involves the merits.”). The Board’s regulations at the time of
the initial decision allowed Mr. Price thirty-five days in which to file a petition for review of
the Initial Decision. 5 C.F.R. § 1201.114(b) (1982). The Board may waive the time limit
upon a showing of good cause for untimely filing. 5 C.F.R. § 1201.113(d) (1982); 5 C.F.R.
§§ 1201.113(d) and 1201.114(f) (2004); see also 5 U.S.C. § 7701(e) (1). However, “[t]he
burden is on the petitioner to demonstrate excusable delay.” Mendoza v. Merit Sys. Prot.
Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).
The scope of review in an appeal to this court from a Board decision is limited. This
court must affirm the Board’s decision unless it is: “(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
05-3097 2
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331
F.3d 1307, 1311 (Fed. Cir. 2003). The Board has broad discretion regarding whether to
reopen an appeal and “a party has a ‘heavy burden’ in attempting to demonstrate that the
full Board erred.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1378 (Fed. Cir. 2003)
(citations omitted).
On appeal, Mr. Price alleges that his petition was untimely because no record of
the Initial Decision existed until 2004. Mr. Price further argues that he was not informed
that his petition to the Board had to be filed within thirty-five days from the date of the
Initial Decision. However, Mr. Price has offered no evidence to substantiate his claim that
no record of the Initial Decision existed until 2004. Moreover, the Initial Decision clearly
informed Mr. Price that his petition to the Board was due on July 9, 1982. Id. at 8.
Consequently, the Board’s findings that Mr. Price’s claims were “not clear,” were
“inherently incredible,” and were only “speculation” are supported by substantial evidence.
Board Dismissal at 3-4. Finally, even if the facts—as alleged by Mr. Price—are true, Mr.
Price has offered no evidence to show that he demonstrated due diligence or ordinary
prudence during the twenty-one year delay. See Alonzo v. Dep’t of the Air Force, 4
M.S.P.R. 180, 184 (1980) (requiring due diligence or ordinary prudence to show
excusable neglect). Consequently, Mr. Price has not shown good cause for his delay in
filing his petition for review.
Because Mr. Price has not shown good cause for his delay in filing his petition for
review, the Board did not abuse its discretion in dismissing Mr. Price’s petition for review
as untimely and this court affirms.
05-3097 3