Wade v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
L.C. WADE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3005
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0353100418-I-1.
___________________________
Decided: March 13, 2012
___________________________
L.C. WADE, of Homer, Louisiana, pro se.
KATHERINE M. SMITH, 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.
__________________________
WADE v. MSPB 2
Before RADER, Chief Judge, LOURIE and MOORE, Circuit
Judges.
PER CURIAM.
L.C. Wade appeals from the final order of the Merit
Systems Protection Board (Board) dismissing his appeal
as untimely filed. Wade v. U.S. Postal Serv. (Final Or-
der), No. DA-0353-10-0418-I-1, slip op. at 4 (M.S.P.B. Aug.
18, 2011). For the reasons discussed below, we affirm.
BACKGROUND
Mr. Wade sustained a back injury while working as a
United States Postal Service Letter Carrier in 1996 and
his last day in a pay status was August 17, 1996. He was
granted disability retirement in 1997 and has received a
retirement annuity since that time. Mr. Wade previously
filed two other appeals in this court stemming from his
employment with the Postal Service. See Wade v. U.S.
Postal Serv., 268 Fed. App’x 968 (Fed. Cir. 2008) (non-
precedential); Wade v. U.S. Postal Serv., 157 Fed. App’x
268 (Fed. Cir. 2005) (non-precedential).
In 2005, Mr. Wade filed two appeals to the board. In
Wade v. United States Postal Service, No. DA-3443-06-
0125-I-1 (M.S.P.B. Jan. 24, 2006), he claimed he was
constructively suspended by the Postal Service. In Wade
v. United States Postal Service, No. DA-0353-06-0124-I-1
(M.S.P.B. Jan. 24, 2006), he sought restoration rights
under 5 C.F.R. § 353.301. On December 20, 2005, the
Board issued an Order to Show Cause because it ap-
peared that the Board lacked jurisdiction over Mr. Wade’s
restoration claim and that it was untimely. The Order set
forth the jurisdictional and the timeliness requirements
for restoration claims. At Mr. Wade’s request, both ap-
peals were dismissed without prejudice with the require-
ment that he refile his appeals no later than July 24,
3 WADE v. MSPB
2006. He refiled the appeal dealing with constructive
suspension and eventually appealed it to this court where
we upheld the Board’s dismissal for lack of jurisdiction.
Wade, 268 Fed. App’x at 970, 972. Mr. Wade did not file
any restoration rights appeals again until he filed the
present appeal on May 4, 2010. See Wade v. U.S. Postal
Serv. (Initial Decision), No. DA-0353-10-0418-I-1, slip op.
at 4 (M.S.P.B. Aug. 25, 2010).
In this appeal, Mr. Wade argued that the Postal Ser-
vice denied him his restoration rights as a physically
disqualified individual under 5 C.F.R. § 353.301(c) effec-
tive August 17, 1996 and sought back pay and no time
lost. The Administrative Judge dismissed Mr. Wade’s
appeal for lack of jurisdiction because he “failed to raise a
nonfrivolous allegation of any facts that could show that
the agency violated any rights he might have had to be
restored to duty by the agency in 1996, or at any time
thereafter.”
On petition for review, the full Board raised the ques-
tion of timeliness. The Board assumed jurisdiction ex-
isted for the purpose of determining timeliness, and
issued an Order to Show Cause because the events in
question occurred in 1996 and 1997 and appeals to the
board must generally be filed within 30 days of the later
of the effective date of the action being appealed or the
appellant’s receipt of the agency’s decision. See 5 C.F.R.
§ 1201.22(b). The Board determined that Mr. Wade was
not given proper notice of his appeal rights in 1996 and
1997 as required by 5 C.F.R. § 353.104. Thus, the Board
stated Mr. Wade’s untimeliness could be excused if he
acted diligently in filing his appeal after learning of his
appeal rights. Final Order, slip op. at 2-3. The Board
determined that Mr. Wade learned of his right to appeal
no later than December 20, 2005 when the Board issued
WADE v. MSPB 4
its Order to Show Cause during his previous restoration
rights appeal.
Therefore, the Order to Show Cause issued in the pre-
sent appeal required him to justify a delay of over four
years with evidence to establish that the appeal was
timely or that good cause excused the delay. The Order
explained that to show the delay should be excused for
illness, Mr. Wade would have to present medical evidence
showing he suffered from an illness during the period of
delay and he must explain how the illness prevented him
from timely filing.
Although some of the evidence was submitted after
the deadline set by the Board, Mr. Wade presented evi-
dence that he was deemed incompetent by the Depart-
ment of Veteran’s Affairs as of March 4, 2004; he also
presented evidence relating to his post traumatic stress
disorder covering the period of 1992 to 2008. Final Order,
slip op. at 3. Mr. Wade argued that he is incompetent;
that he does not understand the Board’s procedures; he
was never given the required notice of appeal; and that
none of the appeals he filed around 2005 demonstrate he
could have timely filed his appeal. The Board disagreed
and found that Mr. Wade did not exercise due diligence
after learning of his appeal rights in 2005 and that there
was no good cause for the delay. Final Order, slip op. at
4. The Board determined that his alleged incompetence
was not good cause for delay because Mr. Wade engaged
in significant ongoing litigation between 2005 and 2010
and “an appellant’s ability to participate in other litiga-
tion fatally undermines the appellant’s claim that his
disability prevented him from filing a petition for review
or a request for an extension.” Id. Additionally, the
Board noted that even for a pro se appellant, a delay of 4
years is material. Id. Mr. Wade now appeals to our court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
5 WADE v. MSPB
DISCUSSION
We 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 proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
On appeal, Mr. Wade argues that he did in fact refile
his appeal in 2006; that the Board improperly ignored his
medical evidence because it was subjective; and that his
incompetence excuses his delay, citing French v. Office of
Personnel Management, 810 F.2d 1118, 1120 (Fed. Cir.
1987). We first note Mr. Wade’s argument that he refiled
his appeal in 2006 is meritless. He did refile an appeal in
2006, but it was the appeal dealing with constructive
suspension, not restoration rights. See Initial Decision,
slip op. at 4. Second, the Board did not improperly ignore
medical evidence. The Board properly excluded some
evidence that was filed after the deadline set by the Board
because Mr. Wade failed to explain why it was previously
unavailable. Final Order, slip op. at 2.
Finally, French does not require the Board to excuse
Mr. Wade’s delay because there is substantial evidence to
support the Board’s conclusion that Mr. Wade’s alleged
incompetence was not good cause for delay. For example,
since December 20, 2005, Mr. Wade refiled an appeal with
the Board, filed three new appeals with the Board (includ-
ing this one), timely filed two petitions for review before
the Board, appealed a Board decision to this court, and
filed two EEOC actions. Therefore, substantial evidence
supports the Board’s finding that Mr. Wade’s ability to
participate in other litigation fatally undermines his
claim that his alleged incompetence prevented him from
WADE v. MSPB 6
filing his appeal or a request for an extension. See Final
Order, slip op. at 4.
We conclude that the Board correctly determined that
Mr. Wade’s appeal was untimely and affirm its dismissal.
We have considered Mr. Wade’s other arguments on
appeal and find them to be without merit.
AFFIRMED
COSTS
No costs.