Johnnie Everage, Petitioner, v. United States Postal Service, Respondent, 937 F.2d 623 (Fed. Cir. 1991)

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U.S. Court of Appeals for the Federal Circuit - 937 F.2d 623 (Fed. Cir. 1991) June 14, 1991

Before RICH, MICHEL and CLEVENGER, Circuit Judges.



Johnnie Everage (Everage) appeals from the July 5, 1990 Initial Decision of the Administrative Judge (AJ) in Docket No. CH07529010436, which became the final decision of the Merit Systems Protection Board (Board) when it denied review on December 4, 1990. We affirm.


The AJ concluded that Everage had not met his burden of showing good cause for the thirteen-month-plus delay in filing his appeal with the Board. More specifically, the AJ found that Everage had failed to adequately explain why his sixth-grade-level reading ability prevented him from understanding the significance of the Board's twenty-day filing deadline, which information Everage concedes was set forth in the agency's notice of removal.

We do not find the AJ's decision to be arbitrary, capricious, an abuse of discretion, contrary to law, or unsupported by substantial evidence. 5 USC 7703(c). Everage has not cited any legal authority for the proposition that a sixth-grade reading ability should excuse noncompliance with Board rules. Even assuming that were the case, reading difficulty can not serve to excuse the period of delay between approximately January 31, 1990, when Everage retained legal counsel, and the May 4, 1990 filing date of his appeal.