108 F3d 1394 Harris v. Merit Systems Protection Board

108 F.3d 1394

Herschell L. HARRIS, Petitioner,

No. 97-3025.

United States Court of Appeals, Federal Circuit.

March 12, 1997.

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.


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Herschell Harris petitions for review of the May 16, 1996 decision of the Merit Systems Protection Board, Docket No. DC0752960606-I-1, dismissing his appeal as untimely filed. The full Board denied review on October 2, 1996. We affirm the decision of the Board.


On February 10, 1995 Mr. Harris was removed from his position as a computer assistant with the Defense Commissary Agency, Fort Lee, Virginia, for being absent without leave. In the notice removing him from employment, he was advised that the deadline for filing an appeal to the Board was thirty days from the effective date of his removal. He filed his appeal on April 1, 1996, more than a year late.


When ordered to show cause why his appeal should not be dismissed for untimeliness, Mr. Harris responded that no one in management would discuss his removal with him or assist him, that he was incapacitated by an injury suffered on the job and under stress from the consequences of the removal, and that past difficulties with the agency and its refusal to grant him advanced sick leave "led to my leaving and not being able to process this correctly." He included reports from a physical therapist and a clinical psychologist regarding a lumbar strain, back pain, and associated stress in his petition to the full Board. The Board found his proffered reasons did not justify a delay of over a year in filing his appeal and granted the agency's motion to dismiss.


The waiver of the time limit for filing an appeal is a matter committed to the Board's discretion and this court will not disturb the Board's refusal to grant such a waiver unless it is arbitrary, an abuse of discretion, or otherwise not in accordance with law. Phillips v. United States Postal Service, 695 F.2d 1389, 1390 (Fed.Cir.1982) (citing 5 U.S.C. § 7703(c)). There is no such infirmity in the Board's exercise of its discretion in this case.