Daniel B. Davis v. Merit Systems Protection Board

972 F.2d 1355, 1992 U.S. App. LEXIS 28331, 1992 WL 129699

• Court: Court of Appeals for the Federal Circuit
• Decided: June 15, 1992
• Docket: 92-3126
• Status: Unpublished

Opinion

972 F.2d 1355

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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Daniel B. DAVIS, Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 92-3126.

United States Court of Appeals, Federal Circuit.

June 15, 1992.

Before PAULINE NEWMAN, Circuit Judge, SKELTON, Senior Circuit Judge, and MAYER, Circuit Judge.

PER CURIAM.

The decision of the Merit Systems Protection Board dismissing Daniel B. Davis' appeal as untimely, Docket No. AT07529110440, is affirmed. Davis is bound by the consequences of his attorney's conduct. See Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962); Rowe v. Merit Systems Protection Board, 802 F.2d 434, 437 (Fed.Cir.1986); Whitaker v. Merit Systems Protection Board, 784 F.2d 1109, 1110 (Fed.Cir.1986). He cannot escape responsibility for the late filing of his appeal by the attorney, even though Davis may have relied on the advice and actions of his attorney in good faith. It is undisputed that the notice of decision clearly informed him of a right to appeal to the board.

The board having considered all the pertinent facts, Davis has not shown how it abused its discretion in declining to waive the time limit. Waivers of the time limit for filing appeals are committed to the board's discretion, and we will not substitute our judgment for the board's. Phillips v. U.S. Postal Service, 695 F.2d 1389, 1390 (Fed.Cir.1982). Our review is limited to whether the decision not to waive was arbitrary, an abuse of discretion, or otherwise not in accordance with the law. Rowe v. Merit Systems Protection Board, 802 F.2d at 437.