Linda A. Cunningham, Petitioner, v. the Department of the Army, Respondent, 852 F.2d 1292 (Fed. Cir. 1988)

Annotate this Case
US Court of Appeals for the Federal Circuit - 852 F.2d 1292 (Fed. Cir. 1988)

June 10, 1988

Before MARKEY, Chief Judge, COWEN, Senior Circuit Judge, and MAYER, Circuit Judge.



The decision of the Merit Systems Protection Board (board), No. DC07528710406, dismissing as untimely filed Linda A. Cunningham's (Cunningham's) appeal from her May 8, 1987 removal, is affirmed.


Cunningham's appeal was in fact filed more than 20 days after the effective date of her removal. 5 C.F.R. Sec. 1201.22(b) (1988). Her arguments relate to why such untimeliness should be excused. That issue "is a matter committed to the board's discretion and this court will not substitute its own judgment for that of the board." Phillips v. United States Postal Service, 695 F.2d 1389, 1390 (Fed. Cir. 1982); see Sheeran v. Merit Sys. Protection Bd., 746 F.2d 806, 807 (Fed. Cir. 1984). Nothing Cunningham has told us shows that the board abused its discretion.

Cunningham's attempt to argue the merits of her case is misguided. The board's decision dismissed for untimeliness. It is that decision, and only that decision, that we review. 5 U.S.C. § 7703(c) (1982).

We affirm on the basis of the board's opinion because we do not find the decision 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 Phillips, 695 F.2d at 1390.