Anthony J. Wagner v. United States Postal Service

838 F.2d 1222, 1988 U.S. App. LEXIS 246, 1988 WL 919

• Court: Court of Appeals for the Federal Circuit
• Decided: January 12, 1988
• Docket: 87-3557
• Status: Unpublished

Opinion

838 F.2d 1222
Unpublished Disposition

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Anthony J. WAGNER, Petitioner,
v.
UNITED STATES POSTAL SERVICE, Respondent.

No. 87-3557.

United States Court of Appeals, Federal Circuit.

Jan. 12, 1988.

Before MARKEY, Chief Judge, RICH and NIES, Circuit Judges.

PER CURIAM.

DECISION

The decision of the Merit Systems Protection Board (board), Docket No. CH07528710008, dismissing as untimely Anthony J. Wagner's (Wagner's) appeal from his removal from the United States Postal Service (agency), is affirmed.

OPINION

Wagner had the burden to show good cause for the thirteen-month delay in filing his appeal after the United States Court of Appeals for the Seventh Circuit informed him that he might be able to appeal to the board. Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir.1982); 5 C.F.R. Secs. 1201.12, 1201.22(c)(2) (1987). The February 28, 1986 order of the United States District Court for the Northern District of Indiana denying Wagner's motion for reinstatement under Fed.R.Civ.P. 60(b)(6) does not excuse Wagner's waiting until October 1986 to file his appeal to the board. Wagner has not explained the delay, and has not, therefore, shown good cause why untimeliness should be waived. The record demonstrates that the board considered Wagner's petition for review. We are unable to conclude that the board's order dismissing his appeal was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that it was unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1982); see Phillips, 695 F.2d at 1390-91.