Robey v. Merit Systems Protection Board , 253 F. App'x 933 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3235
LARRY R. ROBEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Larry R. Robey, of Indianapolis, Indiana, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, United
States Merit Systems Protection Board, of Washington, DC, for respondent. With him
on the brief was B. Chad Bungard, General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3235
LARRY R. ROBEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: November 6, 2007
__________________________
Before MAYER, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Larry R. Robey appeals the final decision of the Merit Systems Protection Board
(“Board”) dismissing his appeal of his removal by the U.S. Postal Service (“Postal
Service”) as untimely and denying his attempt to reopen his withdrawn appeal. Robey
v. U.S. Postal Serv., 105 M.S.P.R. 539 (Apr. 17, 2007). Because Mr. Robey has not
shown good cause for the delay in filing his appeal and because there is no basis to
reopen the prior appeal, we affirm.
BACKGROUND
Mr. Robey was a preference-eligible veteran employed by the Postal Service as
a review clerk. Effective November 25, 2005, the Postal Service issued a letter of
decision removing Mr. Robey from his position because he used sick leave and leave
under the Family Medical Leave Act while performing work in his helicopter business.
The letter of decision explained in detail Mr. Robey’s right to appeal to the Board,
including the time period for appeal, as well as his right to concurrently file a grievance.
Mr. Robey appealed the removal action to the Board on December 1, 2005, but then
withdrew his appeal on December 22, 2005, indicating that he would instead challenge
his removal through his union. The Board issued an initial decision dismissing his
appeal with prejudice. The initial decision became final on January 26, 2006.
Thereafter, Mr. Robey filed a grievance through his union. The grievance was
ultimately submitted to arbitration, where an arbitrator issued a decision denying his
grievance on June 21, 2006.
On July 26, 2006, Mr. Robey submitted another appeal of his removal to the
Board. The Board issued a show cause order for why the appeal should not be
dismissed under the doctrine of res judicata. In response, Mr. Robey asserted that he
was seeking review of the arbitrator’s decision denying his union grievance. The Board
issued an initial decision, dismissing the appeal for lack of jurisdiction given the
dismissal with prejudice of the earlier appeal. After Mr. Robey filed a petition for review,
however, the Board vacated its initial decision. To the extent Mr. Robey’s appeal was
regarded as a request to reopen his prior appeal, the request was denied. To the extent
the appeal was viewed as a new appeal, the Board dismissed the appeal as untimely
without a showing of good cause for the delay.
DISCUSSION
We must affirm the decision by the Board unless we find it to be: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
2007-3235 2
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1581 (Fed. Cir. 1994).
Preference-eligible employees of the Postal Service may: (1) appeal an agency
action directly to the Board; (2) pursue grievance/arbitration procedures; or (3) pursue
both within certain limitations. Stahl v. Merit Sys. Prot. Bd., 83 F.3d 409, 411 (Fed. Cir.
1996). Although Mr. Robey initially appealed the removal action by the Postal Service
to the Board, he later withdrew the appeal and instead pursued grievance/arbitration
procedures through the union. Now, Mr. Robey appears to be seeking review of the
determination by the arbitrator. As a Postal Service employee, however, Mr. Robey has
no right of Board review of the arbitration decision. Fedon v. U.S. Postal Serv., 78
M.S.P.R. 657, 660 (1998); Marjie v. U.S. Postal Serv., 70 M.S.P.R. 95, 98 (1996).
Although the Board may take the arbitration decision into consideration when deciding
an appeal over which it otherwise has jurisdiction and in which the timeliness
requirements have been met, Fedon, 78 M.S.P.R. at 660; Lipsky v. U.S. Postal Serv.,
58 M.S.P.R. 555, 557-58 (1993), the Board may only review a Postal Service arbitration
decision within the context of a timely appeal of the agency action. Jackson v. U.S.
Postal Serv., 57 M.S.P.R. 57, 59 (1993). 1
1
The Federal Circuit likewise lacks jurisdiction to review an arbitrator’s
decision pursuant to a Postal Service agreement with the union. Burke v. U.S. Postal
Serv., 888 F.2d 833, 834 (Fed. Cir. 1989). While 5 U.S.C. § 7121 authorizes the same
review of arbitration decisions by the Federal Circuit as is available for decisions by the
Board, § 7121 and its implementing regulations are not applicable to Postal Service
employees. Id.
2007-3235 3
In this case, Mr. Robey withdrew his prior appeal, resulting in a dismissal with
prejudice. When Mr. Robey filed his second appeal, the Board properly concluded that
there was no basis to reopen the earlier appeal because there was no evidence of
unusual circumstances. Duncan v. U.S. Postal Serv., 96 M.S.P.R. 448, 451-52 (2004).
Therefore, the Board viewed his second appeal as a new appeal and considered
whether there was good cause for waiving the filing deadline. McNeil v. U.S. Postal
Serv., 98 M.S.P.R. 18, 22 (2004); Nabors v. U.S. Postal Serv., 31 M.S.P.R. 656, 659
(1986), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). As explanation for his delay in
filing, Mr. Robey submitted that he had financial troubles, that his house was sold in a
foreclosure sale, and that he was under care by a physician for thoracic and lumbar
back pain. In determining that Mr. Robey did not establish good cause, the Board noted
that the delay of almost seven months was significant, that financial difficulty does not
establish good cause, and that the physician’s letter failed to explain how Mr. Robey’s
medical condition prevented him from timely filing his appeal. We agree. Accordingly,
we find that the final decision by the Board dismissing Mr. Robey’s appeal was not
arbitrary, capricious or an abuse of discretion.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Board.
No costs.
2007-3235 4