816 F2d 672 Ingraham v. United States Postal Service

816 F.2d 672
Unpublished Disposition

Timothy J. INGRAHAM, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE; U.S. Merit Systems Protection
Board, Defendants- Appellees.
Timothy John INGRAHAM, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE, Defendant-Appellee.
Timothy J. INGRAHAM, Plaintiff-Appellant,
v.
OFFICE OF PERSONNEL MANAGEMENT, and United States Postal
Service, Defendants- Appellees.
Timothy J. INGRAHAM, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE, Defendant-Appellee.

Nos. 86-3141, 86-3142, 86-3145 and 86-3154.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 27, 1987.
Decided April 1, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before ERVIN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Timothy J. Ingraham, appellant pro se.

Joseph Sedwick Sollars, III, John Granville Douglas, James Barr Moorhead, Office of the United States Attorney; James A. Friedman, Meg O'Connell, United States Postal Service; and J. Frederick Motz for Appellee Postal Service. Deborah Anne Stover-Springer, Merit Systems Protection Board, and J. Frederick Motz, for appellee Board.

PER CURIAM:


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1

Timothy Ingraham filed twelve complaints in the United States District Court for the District of Maryland pertaining to his separation from a position with the United States Postal Service (USPS) by disability retirement. In an opinion rendered August 29, 1986, the district court found in favor of all the defendants on each of Ingraham's claims. This is a consolidated appeal from nine of the district court cases.

2

At the outset we dismiss No. 86-3154 for lack of jurisdiction. Judgment was entered on September 3, 1986. Ingraham's notice of appeal, however, was not filed until November 10, 1986. Federal Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed within sixty days after the entry of judgment when the United States government is a party to the action. As Ingraham's notice of appeal was filed outside the sixty day period, this court lacks jurisdiction to hear his appeal.*

3

Case number 86-3145 is an appeal from three district court cases in which Ingraham alleged various procedural irregularities by the USPS and the Office of Personnel Management (OPM) in connection with his application for disability retirement. The district court held that the principles of res judicata barred these claims because they were previously presented to the Merit Systems Protection Board (MSPB) and the United States Court of Appeals for the Federal Circuit.As the district court noted, Ingraham claims in essence that the procedures followed by the USPS and the OPM coerced him into applying for disability retirement. This was the precise issue presented to the MSPB and the Federal Circuit and both tribunals had the opportunity to consider Ingraham's allegations in this regard. We therefore affirm the district court's holding that res judicata bars these claims.

4

In number 86-3141 Ingraham seeks relief from the MSPB and the USPS alleging procedural irregularities in the administration of his fitness for duty examination. He further alleges that the USPS engaged in deceit by refusing to admit that it was in possession of the reports from the examination. The district court held that res judicata barred these claims insofar as they alleged procedural irregularities in conjunction with Ingraham's separation from employment with the postal service. Additionally, the court held that insofar as Ingraham's complaint could be read to allege a tort (deceit) by the USPS, Ingraham had failed to exhaust his administrative remedies under 28 U.S.C. Sec. 2401(b). We find no error in the district court's conclusions and, accordingly, affirm.

5

Finally, in number 86-3142 Ingraham seeks relief under the Freedom of Information Act, 5 U.S.C. Sec. 552, and the Privacy Act, 5 U.S.C. Sec. 552a, alleging that he was injured by a delay in receiving his medical report and USPS investigation reports. As the district court correctly held, Ingraham's claim under the Privacy Act is barred by the two year statute of limitations. 5 U.S.C. Sec. 552a(g)(5). Furthermore, since Ingraham was given access to the reports his claim under the Freedom of Information Act is moot. DeBold v. Stimson, 735 F.2d 1037 (7th Cir.1984); Perry v. Block, 684 F.2d 121 (D.C.Cir.1982); Crooker v. United States State Dept., 628 F.2d 9 (D.C.Cir.1980). Ingraham's claims, therefore, lack merit.

6

As the district court noted, the OPM did not file a responsive pleading until the day before the hearing in district court. However, since Ingraham's claims lack merit we agree with the district court's conclusion that no purpose would have been served by allowing Ingraham additional time to reply to the OPM's response. Because the dispositive issues have been recently decided authoritatively we dispense with oral argument, affirm case numbers 86-3141, 86-3142, and 86-3145, and dismiss 86-3154 for lack of jurisdiction.

7

No. 86-3141--AFFIRMED.


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8

No. 86-3142--AFFIRMED.

9

No. 86-3145--AFFIRMED.

10

No. 86-3154--DISMISSED.

*

Fed.R.App.P. 4(a)(5) provides that the district court may extend the time for filing upon a showing of excusable neglect. This Court, however, has held that "[a] bare notice of appeal should not be construed as a motion for extension of time, where no request for additional time is manifest." Shah v. Hutto, 722 F.2d 1167, 1168-69 (4th Cir.1983), cert. denied, 466 U.S. 975 (1984). As Ingraham made no timely request for an extension of time this Court lacks jurisdiction to hear his appeal