Elijah Davis, Petitioner, v. United States Postal Service, Respondent, 831 F.2d 306 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 831 F.2d 306 (Fed. Cir. 1987) September 11, 1987

Before MARKEY, Chief Judge, BALDWIN, Senior Circuit Judge, and EDWARD S. SMITH, Circuit Judge.



The decision of the Merit Systems Protection Board (board), Docket No. DA07528610327, dismissing the appeal of Elijah Davis (petitioner), is affirmed.


The board dismissed the petition for review as untimely filed. Petitioner argues that the board, in failing to consider that he received actual notice of the removal on the thirteenth day of the twenty-day period for filing an appeal, abused its discretion in refusing to waive the twenty-day limit set forth in 5 C.F.R. Sec. 1201.22(b).

The board has broad discretion to decide whether there is good cause to waive the time limit for appeal. Good cause for a waiver may be constituted by a reasonable excuse for the delay in light of the particular facts and circumstances of the case. Phillips v. United States Postal Service, 695 F.2d 1389, 1390 (Fed. Cir. 1982). The burden, however, is upon petitioner to show that there exists good cause for the delay. Womack v. Merit Systems Protection Board, 798 F.2d 453, 456 (Fed. Cir. 1986).

Petitioner, in this instance, did not offer to the board a reasonable excuse or explanation upon which a good cause determination could be made. Accordingly, the action of the board dismissing petitioner's appeal as untimely was not an abuse of discretion.