Barr v. Merit Systems Protection Board ( 2005 )

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
05-3170
BYRON L. BARR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
_____________________________
DECIDED: December 2, 2005
_____________________________
Before, CLEVENGER, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Byron L. Barr (“Barr”) petitions this court to review the final judgment of the Merit
Systems Protection Board (“Board”) dismissing the appeal of his removal as untimely
filed without a showing of good cause. Barr v. United States Postal Service, No. DA-
0752-04-0430-I-1 (Feb. 3, 2005) (final order). Because the Board did not abuse its
discretion in dismissing Barr’s appeal as untimely, we affirm.
I
Barr, a preference eligible employee, was removed from his position as a letter
carrier with the United States Postal Service (“USPS”), effective February 2, 2004, for
“Inappropriate Conduct – Violation of [the] terms of Last Chance Agreement.” The
removal notice, which issued on January 15, 2004, advised Barr of his right to appeal
his removal to the Board within 30 days of the effective date of the adverse action. See
5 C.F.R. § 1201.22(b)(1) (2005).
Barr filed his appeal with the Board on April 21, 2004, seven weeks after the filing
deadline had expired. On April 26, 2004, the administrative judge (“AJ”) issued an
Acknowledgment Order ordering Barr to file evidence and argument showing that his
appeal was timely filed or that good cause existed for the delay. Barr responded by
arguing that his removal notice was sent to the wrong address, and that his union
representative failed to inform him of his right to appeal. On May 26, 2004, the Board
issued another order giving Barr one final opportunity to show good cause.
Subsequently, Barr filed two brief submissions essentially repeating his arguments
alleging the same.
In a July 2004 initial decision, the AJ dismissed Barr’s appeal as untimely without
a showing of good cause. Barr v. United States Postal Service, No. DA-0752-04-0430-
I-1 (July 2, 2004) (initial decision). Barr then filed a petition for review with the full
Board. In February 2005, finding that the AJ made no error in law, and no new,
previously unavailable, evidence was presented, the Board denied Barr’s petition. Barr,
No. DA-0752-04-04-0430-I-1 (final order). The AJ’s initial decision became the final
decision of the Board. Barr timely appealed and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
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II
A
Our scope of review in an appeal 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
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. MSPB, 331 F.3d 1307,
1311 (Fed. Cir. 2003).
B
Barr does not dispute the untimeliness of his appeal. Instead, Barr argues that
the Board erred in finding that no good cause existed for the delay because the USPS
mailed his notice of removal to the wrong address. We disagree.
Before the Board will waive the time limit for filing an appeal, the petitioner must
show good cause for the delay in filing. See 5 C.F.R. § 1201.22(c). To establish good
cause for the untimely filing of an appeal, a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case. Some
factors to be considered in determining good cause include the length of the delay,
whether the appellant was notified of the time limit, circumstances beyond the
appellant’s control, whether the appellant was negligent in failing to meet the time limit,
and whether the failure was due to excusable neglect. See Walls v. MSPB, 29 F.3d
1578, 1583 (Fed. Cir. 1994).
Barr argues that because the USPS mailed his notice to the incorrect address,
he did not receive the notice of removal in time to appeal. Barr fails to provide any
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evidence that the notice was mailed to the wrong address, or that the address of record
with the USPS was incorrect. In addition, Barr makes no attempt to refute the AJ’s
finding that he indeed received and signed for the notice. The AJ correctly determined
that Barr’s bare assertion that the notice was mailed to an incorrect address did not
constitute good cause.
Barr further contends that the failure of the USPS union representative to inform
him of his appeal rights constituted good cause for the delay. We agree with the AJ’s
determination that this allegation is immaterial. The notice of removal sufficiently
informed Barr of his right to appeal and provided him with information necessary to file
the appeal.
Finally, Barr alleges that the USPS received return mail and withheld it from him,
causing the delay in filing. Barr makes no factual allegations to support his contention.
Barr’s assertion that the USPS withheld mail is unsupported and fails to overcome the
AJ’s finding that he received the notice of removal. Barr had until March 3, 2004 to file
his appeal, 30 days after the effective date of his removal. Because Barr filed his
appeal seven weeks after the deadline and has not shown good cause for the delay, the
Board did not abuse its discretion in dismissing Barr’s appeal as untimely.
III
We affirm the judgment of the Board. Each side shall bear its own costs.
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