                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3235


                                  LARRY R. ROBEY,

                                                          Petitioner,


                                           v.


                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Larry R. Robey, of Indianapolis, Indiana, pro se.

       Michael A. Carney, General Attorney, Office of the General Counsel, United
States Merit Systems Protection Board, of Washington, DC, for respondent. With him
on the brief was B. Chad Bungard, General Counsel.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-3235


                                  LARRY R. ROBEY,

                                                    Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                    Respondent.

                           __________________________

                           DECIDED: November 6, 2007
                           __________________________

Before MAYER, LOURIE, and PROST, Circuit Judges.

PER CURIAM.

      Larry R. Robey appeals the final decision of the Merit Systems Protection Board

(“Board”) dismissing his appeal of his removal by the U.S. Postal Service (“Postal

Service”) as untimely and denying his attempt to reopen his withdrawn appeal. Robey

v. U.S. Postal Serv., 105 M.S.P.R. 539 (Apr. 17, 2007). Because Mr. Robey has not

shown good cause for the delay in filing his appeal and because there is no basis to

reopen the prior appeal, we affirm.

                                      BACKGROUND

      Mr. Robey was a preference-eligible veteran employed by the Postal Service as

a review clerk. Effective November 25, 2005, the Postal Service issued a letter of

decision removing Mr. Robey from his position because he used sick leave and leave
under the Family Medical Leave Act while performing work in his helicopter business.

The letter of decision explained in detail Mr. Robey’s right to appeal to the Board,

including the time period for appeal, as well as his right to concurrently file a grievance.

Mr. Robey appealed the removal action to the Board on December 1, 2005, but then

withdrew his appeal on December 22, 2005, indicating that he would instead challenge

his removal through his union.      The Board issued an initial decision dismissing his

appeal with prejudice.      The initial decision became final on January 26, 2006.

Thereafter, Mr. Robey filed a grievance through his union.            The grievance was

ultimately submitted to arbitration, where an arbitrator issued a decision denying his

grievance on June 21, 2006.

         On July 26, 2006, Mr. Robey submitted another appeal of his removal to the

Board.     The Board issued a show cause order for why the appeal should not be

dismissed under the doctrine of res judicata. In response, Mr. Robey asserted that he

was seeking review of the arbitrator’s decision denying his union grievance. The Board

issued an initial decision, dismissing the appeal for lack of jurisdiction given the

dismissal with prejudice of the earlier appeal. After Mr. Robey filed a petition for review,

however, the Board vacated its initial decision. To the extent Mr. Robey’s appeal was

regarded as a request to reopen his prior appeal, the request was denied. To the extent

the appeal was viewed as a new appeal, the Board dismissed the appeal as untimely

without a showing of good cause for the delay.

                                       DISCUSSION

         We must affirm the decision by the Board unless we find it to be: “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained




2007-3235                                    2
without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Walls v. Merit Sys. Prot. Bd.,

29 F.3d 1578, 1581 (Fed. Cir. 1994).

       Preference-eligible employees of the Postal Service may: (1) appeal an agency

action directly to the Board; (2) pursue grievance/arbitration procedures; or (3) pursue

both within certain limitations. Stahl v. Merit Sys. Prot. Bd., 83 F.3d 409, 411 (Fed. Cir.

1996). Although Mr. Robey initially appealed the removal action by the Postal Service

to the Board, he later withdrew the appeal and instead pursued grievance/arbitration

procedures through the union. Now, Mr. Robey appears to be seeking review of the

determination by the arbitrator. As a Postal Service employee, however, Mr. Robey has

no right of Board review of the arbitration decision. Fedon v. U.S. Postal Serv., 78

M.S.P.R. 657, 660 (1998); Marjie v. U.S. Postal Serv., 70 M.S.P.R. 95, 98 (1996).

Although the Board may take the arbitration decision into consideration when deciding

an appeal over which it otherwise has jurisdiction and in which the timeliness

requirements have been met, Fedon, 78 M.S.P.R. at 660; Lipsky v. U.S. Postal Serv.,

58 M.S.P.R. 555, 557-58 (1993), the Board may only review a Postal Service arbitration

decision within the context of a timely appeal of the agency action. Jackson v. U.S.

Postal Serv., 57 M.S.P.R. 57, 59 (1993). 1




      1
              The Federal Circuit likewise lacks jurisdiction to review an arbitrator’s
decision pursuant to a Postal Service agreement with the union. Burke v. U.S. Postal
Serv., 888 F.2d 833, 834 (Fed. Cir. 1989). While 5 U.S.C. § 7121 authorizes the same
review of arbitration decisions by the Federal Circuit as is available for decisions by the
Board, § 7121 and its implementing regulations are not applicable to Postal Service
employees. Id.



2007-3235                                    3
       In this case, Mr. Robey withdrew his prior appeal, resulting in a dismissal with

prejudice. When Mr. Robey filed his second appeal, the Board properly concluded that

there was no basis to reopen the earlier appeal because there was no evidence of

unusual circumstances. Duncan v. U.S. Postal Serv., 96 M.S.P.R. 448, 451-52 (2004).

Therefore, the Board viewed his second appeal as a new appeal and considered

whether there was good cause for waiving the filing deadline. McNeil v. U.S. Postal

Serv., 98 M.S.P.R. 18, 22 (2004); Nabors v. U.S. Postal Serv., 31 M.S.P.R. 656, 659

(1986), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). As explanation for his delay in

filing, Mr. Robey submitted that he had financial troubles, that his house was sold in a

foreclosure sale, and that he was under care by a physician for thoracic and lumbar

back pain. In determining that Mr. Robey did not establish good cause, the Board noted

that the delay of almost seven months was significant, that financial difficulty does not

establish good cause, and that the physician’s letter failed to explain how Mr. Robey’s

medical condition prevented him from timely filing his appeal. We agree. Accordingly,

we find that the final decision by the Board dismissing Mr. Robey’s appeal was not

arbitrary, capricious or an abuse of discretion.

                                      CONCLUSION

       For the foregoing reasons, we affirm the decision of the Board.

       No costs.




2007-3235                                    4
