Anthony J. Wagner, Petitioner, v. United States Postal Service, Respondent, 838 F.2d 1222 (Fed. Cir. 1988)

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. § 7703(c) (1982); see Phillips, 695 F.2d at 1390-91.