               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit




                                        06-3099



                                JAMES EDWARDS, III,

                                                           Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                           Respondent.



                          __________________________

                             DECIDED: May 5, 2006
                           __________________________


Before NEWMAN, MAYER, and RADER, Circuit Judges.

PER CURIAM.

      James Edwards, III appeals from the final decision of the Merit Systems

Protection Board, which affirmed the arbitrator’s denial of his grievance challenging his

removal. Edwards v. Dep’t of Veterans Affairs, CB7121050016-V-1 (MSPB Oct. 31,

2005). We affirm.

      We must affirm the board’s decision unless it was arbitrary, capricious, an abuse

of discretion, or unlawful; procedurally deficient; or unsupported by substantial
evidence.   See 5 U.S.C. § 7703(c) (2000).        Edwards contends that the arbitrator

improperly applied 29 C.F.R. § 825.208(e)(1) instead of 5 C.F.R. § 630.1207(h) in

determining the deadline for submitting medical documentation. We agree with the

board that Title 5, not Title 29, applies here, but we also note that the subsections cited

by Edwards concern different deadlines: 29 C.F.R. § 825.208(e)(1) addresses when

leave under the Family Medical Leave Act (“FMLA”) must be invoked, whereas 5 C.F.R.

§ 630.1207(h) concerns when medical documentation must be submitted. However,

any error resulting from the misapplication of Title 29 was harmless because the

arbitrator and board found that Edwards had not presented medical certification for all of

his unexcused absences.

       The board observed that when the arbitration was held seven months after

Edwards returned to work, he still had not submitted medical certification for certain

unexcused dates. However, Edwards cites a letter from his physician, dated ten days

after his removal, providing that he underwent multiple inpatient treatments for chemical

dependency spanning the unexcused absences.             Unless the arbitrator or board

implicitly considered the letter and found that it did not qualify as medical certification

under 5 C.F.R. § 630.1207(b), we believe the board’s observation that he had not

submitted any certification was in error. However, we need not address whether the

letter satisfied the requirements of section 630.1207(b), because it was submitted well

beyond the deadline for submitting such certification, see § 630.1207(h), and the

arbitrator would not have erred in declining to consider it. The department did consider

the medical documentation that Edwards submitted prior to his removal, and it changed

some of his absences from “absent without leave” to “leave without pay” in light of his




06-3099                                     2
submissions. Moreover, although the department found the documentation submitted

by Edwards inadequate to excuse some of his absences, it was under no duty to

request additional documentation.

      Edwards also argues that the board “imposed an improperly high standard for

providing medical documentation.” However we find nothing in the record to indicate

that the burden placed upon him was legally improper.




06-3099                                   3
