Unpublished Dispositionwalter L. Bailey, Petitioner, v. Merit Systems Protection Board, Respondent, 824 F.2d 976 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 824 F.2d 976 (Fed. Cir. 1987) April 13, 1987

Before DAVIS, Circuit Judge, BENNETT, Senior Circuit Judge, and ARCHER, Circuit Judge.



The decision of the Merit Systems Protection Board (MSPB or Board), Docket No. PH07528610385, denying as untimely Walter L. Bailey's appeal from a removal action of the Department of the Navy (agency), is affirmed.


The sole issue before the court is the timeliness of the filing of petitioner's appeal to the MSPB, which was filed nearly three months after the expiration of the prescribed twenty-day appeal period. This time limit, however, may be waived by the Board upon a proper showing of good cause. Yuni v. Merit Systems Protection Board, 784 F.2d 381, 384 (Fed. Cir. 1986).

In acknowledging receipt of Bailey's appeal, the Board's Philadelphia Office requested an explanation of the untimely filing. The reasons set forth in Bailey's response, consisting principally of the alleged misdirection of his appeal petition, were fully considered by the presiding official and properly rejected. The presiding official, after noting that Bailey was apprised of his appeal rights and "fully aware of how to proceed," stated that "the facts show an employee who simply refused to follow directions because he did not trust the agency; this is intentional delay, and not excusable under any criteria of the Board."

We agree and affirm on the basis of the presiding official's opinion. The decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).