French v. Merit Systems Protection Board ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANTHONY L. FRENCH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3151
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0353110232-I-1.
___________________________
Decided: December 11, 2012
___________________________
ANTHONY L. FRENCH, of Columbus, Ohio, pro se.
Sara B. Rearden, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before NEWMAN, PROST, and O’MALLEY, Circuit Judges.
ANTHONY FRENCH v. MSPB 2
PER CURIAM.
Anthony L. French seeks review of a decision of the
Merit Systems Protection Board (“Board”) dismissing his
petition for review as untimely. We affirm.
BACKGROUND
Mr. French was hired by the United States Postal
Service in 1968. In June 2002, he suffered an injury on
duty and accepted modified duties that he could perform
given his physical limitations. Most recently, in January
2010, he accepted an Offer of Modified Job Assignment to
repair mail in the Rewrap Section. Pursuant to a Na-
tional Reassessment Process, the Postal Service notified
him that, as of October 2010, there was no longer avail-
able work for him in his local commuting area given his
medical restrictions. After the notice, Mr. French made,
and the Office of Workers’ Compensation Programs ac-
cepted, a reoccurrence claim for his lost wages and medi-
cal bills. Mr. French then appealed the Postal Service’s
actions to the Board, alleging that the Postal Service
acted arbitrarily and capriciously in denying him restora-
tion to work following his partial recovery from a com-
pensable injury.
The administrative judge assigned to Mr. French’s
appeal found that the Board lacked jurisdiction because
he had failed to make a non-frivolous allegation that the
Postal Service’s denial of restoration was arbitrary and
capricious. The administrative judge concluded that: an
employee is not entitled to a limited-duty assignment
regardless of whether the duties are operationally neces-
sary; restorations to modified job assignments are de-
pendent on whether adequate work capable of being
performed by a partially-recovered employee exists in the
employee’s area; and Mr. French failed to allege or pro-
vide any evidence that the Postal Service’s determination
3 ANTHONY FRENCH v. MSPB
that no suitable work existed in Mr. French’s local com-
muting area was inadequate or erroneous. As stated in
the notice to Mr. French accompanying it, the administra-
tive judge’s initial decision was to become final on May 13,
2011.
Mr. French petitioned the Board for review of the ini-
tial decision on May 14, 2011, one day after the initial
decision became final. In a June 2011 motion to the
Board, Mr. French asserted that there was good cause for
the one-day delay because of his medical problems, his
lack of pay from the Postal Service after October 2010, the
selection of an employee as manager of a particular
distribution operations position within the Postal Service,
an apparent relationship between his petition and an
Equal Employment Opportunity Commission matter, and
the holiday schedule for the year 2007. The Board, how-
ever, found none of those proffered reasons established
good cause. Noting that the regulatory timeliness re-
quirement for petitions for review will not be waived, even
by a single day, if a petitioner provides no reasonable
explanation for the delay in filing a petition, the Board
dismissed Mr. French’s petition for review because it was
untimely.
Mr. French now petitions us for review of the Board’s
decision.
DISCUSSION
A petition to the Board for review of an initial decision
“must be filed within 35 days after the date of issuance of
the initial decision or, if the petitioner shows that the
initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the peti-
tioner received the initial decision.” 5 C.F.R.
ANTHONY FRENCH v. MSPB 4
§ 1201.114(d).1 Mr. French filed his petition thirty-six
days after the administrative judge issued the initial
decision in his case and does not appear to dispute that
his petition to the Board was untimely.
Our scope of review is limited in an appeal from a de-
cision of the Board dismissing a petition for review for
being untimely. Because the Board has “broad discretion
to control its own docket,” we must “affirm the board’s
decision to dismiss an untimely filed petition for review
unless the decision is shown to have been arbitrary, an
abuse of discretion, or otherwise not in accordance with
law.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388
(Fed. Cir. 1994) (quotation marks omitted); see 5 U.S.C.
§ 7703(c). When a petition for review is filed late, the
petitioner bears the burden to show that there was good
cause for the delay and that he exercised due diligence in
attempting to meet the filing deadline. Zamot v. Merit
Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003). “The
factors bearing on whether there is good cause for an
untimely filing include the length of the delay, whether
the appellant was notified of the time limit, the existence
of circumstances beyond the appellant's control that
affected his ability to comply with the deadline, the appel-
lant's negligence, if any, and any unavoidable casualty or
misfortune that may have prevented timely filing.” Id.
Determining whether these factors justify waiving the
time period for filing a petition for review is committed to
the Board’s discretion, and “this court will not substitute
its judgment for that of the Board.” Id.; see Olivares, 17
F.3d at 388; Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc). Thus, a petitioner
bears a “heavy burden of establishing that the Board
1 5 C.F.R. § 1201.114 was amended effective No-
vember 13, 2012. Citations in this opinion are to the
regulation in effect at the time of the Board’s decision.
5 ANTHONY FRENCH v. MSPB
abused its discretion in finding that he failed to show good
cause for the delay in filing his petition for review.”
Zamot, 332 F.3d at 1377.
On appeal to this court, Mr. French provides no rea-
sonable argument why the Board may have abused its
discretion by dismissing his untimely petition.2 We are
thus left to review only the records of decision here, from
which we find no basis for concluding that the Board
abused its discretion. Mr. French had ample opportunity
to show good cause for the delay in the filing of his peti-
tion for review and presented his arguments to the Board
by motion in June 2011. Mr. French’s primary contention
was that his medical conditions and surgery in June 2011
caused his delay in filing. The Board discounted that
evidence, however, because “[m]any of the medical docu-
ments [Mr. French] submit[ted] in support of his motion
relate[d] to the period before the initial decision was
issued or after the deadline for filing the petition for
review.” French v. U.S. Postal Serv., CH0353110232-I-1,
slip op. at 3 (M.S.P.B. Apr. 20, 2012) We find no error,
therefore, in the Board’s conclusion that “those documents
do not directly address the appellant’s ability to timely
file his petition for review or request an extension of
time.” Id. Likewise we find no error in the Board’s judg-
ment that the other rationales Mr. French asserted to
justify the delay failed to establish good cause.
2 We find no merit in his apparent argument that
the Board abused its discretion because of a “practice of
collusion/conspiracy” evidenced by “prima facia [sic] cases
of discrimination” and a “White Hegemonic Culture” that
helps “whites more than people of color, especially Afri-
can-American males.” Pet’r’s Br. Question 2. We also
find no merit in the arguments Mr. French put forth in
his supplemental briefing.
ANTHONY FRENCH v. MSPB 6
Although dismissal of his petition for review for being
filed one day late may appear to be an austere adherence
to regulations, we cannot say, on the facts of this case,
that the Board's dismissal of Mr. French’s petition for
review as untimely was arbitrary, an abuse of discretion,
or otherwise erroneous under the law.
COSTS
Each party shall bear its own costs.
AFFIRMED