                      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
                                          06-3214

                                  JOHN G. CAMPBELL,

                                                                      Petitioner,

                                             v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                                      Respondent.

                          ___________________________

                          DECIDED: November 13, 2006
                          ___________________________


Before DYK and PROST, Circuit Judges, and McKINNEY, Chief Judge*.

PER CURIAM.

      Petitioner John G. Campbell (“Campbell”) petitions for review of the final order of

the Merit Systems Protection Board (“Board”), dismissing Campbell’s appeal from his

removal as a letter carrier for the United States Postal Service (“USPS”) as untimely.

We affirm.

                                   BACKGROUND

      Campbell began working as a carrier technician with the USPS in 1983. Due to

attendance problems, the USPS and Campbell entered into a “Last Chance Agreement”

on January 9, 2004, which instituted a one-year probation period for attendance and

provided for removal in the event of any absence without leave (“AWOL”), more than


      *
              Honorable Larry J. McKinney, Chief Judge of the United States District
Court for the Southern District of Indiana, sitting by designation.
five unscheduled (i.e. not approved in advance) absences, or any absence without

acceptable documentation. On May 24, 2004, the USPS issued Campbell a Notice of

Proposed Removal for violating the Last Chance Agreement. On June 10, 2004, in

response to this notice, the USPS and Campbell entered into a Second Last Chance

Agreement with the same pertinent provisions as the original one.

      The USPS issued yet another Notice of Proposed Adverse Action—Removal on

February 3, 2005, because Campbell had seven unscheduled absences, including six

AWOLs, since the Second Last Chance Agreement was signed.              After considering

Campbell’s response, on March 8 the USPS issued a Letter of Decision removing

Campbell from his position effective April 8. Campbell was required to file any appeal to

the Board within 30 days of the effective date of his removal or 30 days after he

received notice of the USPS’s action, whichever was later. 5 C.F.R. § 1201.22(b)(1)

(2006). The Letter of Decision also noted that if Campbell and the USPS “mutually

agree[d] in writing to attempt to resolve this matter through an alternative dispute

resolution process” he would have 60 days after the effective date of his removal to file

his appeal. On April 9 Campbell wrote to the USPS requesting that they enter into an

alternative dispute resolution process.1 The USPS responded on April 28, stating that

“it is the Agency’s decision to not mutually agree to enter into the alternative dispute

resolution process” and that Campbell “should therefore follow any of the appeal rights

outlined in the Notice of Proposed Removal and Letter of Decision.”




      1
              Although there was some confusion as to when Campbell received the
Letter of Decision, the Board concluded that Campbell clearly had notice of his removal




06-3214                                    2
       On June 8, 2005, Campbell filed his appeal with the MSPB. In response to the

USPS’s motion to dismiss, the Administrative Judge (“AJ”) ordered Campbell to show

cause why his appeal should not be dismissed for untimeliness. On August 9, after

considering Campbell’s response, the AJ entered his initial decision dismissing the

appeal as untimely. Given the April 8 effective date of Campbell’s removal (and his

receipt of the notice on or before the effective date), the AJ concluded that the deadline

for filing an appeal was May 9, 2005, and that the June 8 appeal was untimely by 30

days. The AJ also rejected Campbell’s argument that he had shown good cause for

filing late, concluding that the Letter of Decision and the USPS’s April 28 letter gave him

clear notice of the 30 day deadline. Even if Campbell himself believed he had 60 days

from the effective date of his removal, his appeal was filed 61 days after his removal

under the regulation.

       On October 28, 2005, the Board denied Campbell’s petition for review, and the

AJ’s initial decision became the final decision of the Board. Campbell timely filed his

appeal to this court on July 19, 2006. We have jurisdiction pursuant to 28 U.S.C. §

1295(a)(9) (2000).

                                      DISCUSSION

       This court may only set aside a decision of the Board if it was (1) arbitrary,

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

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

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). Under the Board’s

regulations, a petition for appeal from an adverse action must be filed within the later of


on or before the effective date, as shown by his April 9 letter. This finding is supported



06-3214                                    3
30 days of the effective date of the action or 30 days after the employee receives notice

of the action. 5 C.F.R. § 1201.22(b)(1). An untimely appeal to the Board must be

dismissed “unless a good reason for the delay is shown.”         5 C.F.R. § 1201.22(c).

“[W]hether the regulatory time limit for an appeal should be waived based upon a

showing of good cause is a matter committed to the Board's discretion and this court will

not substitute its own judgment for that of the Board.” Mendoza v. Merit Sys. Prot. Bd.,

966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). “The burden is on the petitioner to

demonstrate excusable delay,” which requires a showing of “diligence and ordinary

prudence.” Id.

      There is no dispute that Campbell’s appeal was not timely filed since Campbell

received the notice on or before his removal date; the effective date of Campbell’s

removal was April 8; and his appeal was not filed until June 8. However, Campbell

argued before the Board, and appears to argue on appeal, that there was good cause

for excusing his untimeliness. Specifically, Campbell contends that he thought he had

60 days after the effective date in which to file his appeal because he had requested

that the agency agree to enter alternative dispute resolution.

      We conclude that the Board did not abuse its discretion in concluding that

Campbell’s confusion about the deadline did not establish the diligence required for

good cause. The Letter of Decision clearly stated that the 60 day period was only

applicable if Campbell and the USPS “mutually agree[d] in writing to attempt to resolve

this matter through an alternative dispute resolution process.” (emphasis added)

Furthermore, the USPS’s April 28 letter was explicit that the USPS did “not mutually



by substantial evidence.


06-3214                                    4
agree” to alternative dispute resolution, and it proceeded to advise Campbell to pursue

the appeal rights noted in his Letter of Decision. Having concluded that the Board did

not abuse its discretion in finding that Campbell did not act diligently because he had

clear notice of the deadline, we need not consider the Board’s alternative ground that

Campbell was not diligent because his appeal was filed 61 days after the removal,

rather than within the 60 days that he believed he had.

      Campbell also appears to argue that the Board abused its discretion when it

failed to consider his medical condition. See Petitioner’s Informal Br. at 1. This court

finds no abuse of discretion in the Board’s conclusion that the record as a whole does

not show good cause.

      For the foregoing reasons, the Board’s decision is affirmed.

                                        COSTS

      No costs.




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