Before Rich, Circuit Judge, Smith, Senior Circuit Judge, and Gajarsa, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
Richard Arrington appeals the May 21, 1998 order of the Merit Systems Protection Board (Board), Docket No. DC-0752-97-0535-I-1, sustaining the dismissal of his appeal of his removal from the United States Postal Service (Agency) as untimely filed. Because the Board did not abuse its discretion in concluding that good cause was not shown for waiver of the time limit for filing his petition, we affirm.
Mr. Arrington was employed by the Agency as a mail handler. On March 3, 1997, the Agency issued a decision letter informing Arrington of his removal from his position effective March 5, 1997. The letter, sent by first class mail and by certified mail, also informed Arrington that he had the right to appeal his removal within 30 calendar days from the effective date of the decision. On April 21, 1997, Arrington filed an appeal of the Agency's decision with the Board. The Administrative Judge (AJ) found that Arrington received the certified mailing on March 20, 1997. However, on March 17, 1997 he telephoned the agency and was informed of his removal, his appeal rights to the Board, and of the time limits for filing a timely appeal. Therefore, the AJ concluded Mr. Arrington received actual notice on March 17, 1997 and that was the effective date for purposes of the running of the 30-day period for filing a timely Board appeal. Since Arrington did not file his appeal until April 21, 1997, his appeal was five days late. Because the AJ determined that Arrington had not demonstrated good cause for his untimely filing, the AJ dismissed the appeal. The decision became final on May 21, 1998, when the Board denied Arrington's petition for review for failure to meet the criteria set forth at 5 C.F.R. § 1201.115 (1997). This appeal followed.
Because Arrington does not challenge the Board's finding that the appeal was untimely, the only issue before this court is whether the Board properly denied a good cause waiver of the time limit for filing the appeal.
We must affirm the Board's decision to deny a good cause waiver of a filing deadline unless the decision is "(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) (1994); see Webb v. Merit Sys. Protection Bd., 70 F.3d 104, 105 (Fed. Cir. 1995). Whether 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. See Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (in banc).
The Board may waive the time limit for appealing an agency action when the petitioner shows good cause for the delay. See 5 C.F.R. § 1201.22(c) (1998); see also Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). To establish good cause, the petitioner need not show that it was impossible to file timely, but only that the delay was excusable under the circumstances where diligence or ordinary prudence has been exercised. See Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982).
Arrington first argues that his five-day delay is excusable because the Agency failed to provide a clear "finality date," which entitled Petitioner to rely on the receipt date of the decision letter sent by certified mail instead of relying on the date of actual notice. However, the Agency's decision letter was not ambiguous with respect to the "finality date." It explicitly stated that an appeal had to be filed within 30 calendar days of the effective date of the removal decision, and that the effective date was March 5, 1997. Nothing in the letter suggested that Petitioner could rely on the receipt date of the letter sent by certified mail. Furthermore, unlike the decision letter issued in Walls, the Agency's decision letter in the case at hand was not ambiguous with respect to the filing deadline. Walls, 29 F.3d at 1584 (good cause for two-day delay shown when reference to "days" could reasonably be read as "working" days instead of "calendar" days).
Arrington further argues that the Agency contributed to the delay, because it refused to provide Mr. Smith, the union steward who filed the appeal for Arrington, with the receipt date of the decision letter. However, as the Board correctly pointed out, it is not the Agency's fault if Arrington failed to provide his representative with the receipt date. The record indicates that Arrington's counsel signed the appeal form on March 24, 1997, but then Arrington took the appeal form to Smith. Smith did not file the appeal until April 21, 1997 because he was allegedly occupied with other matters and had difficulty getting in touch with Arrington to finalize the appeal. The lack of communication between Arrington and his representatives is, in this case, not attributable to the agency. The Board determined that neither Arrington nor his representatives acted diligently. They did not communicate with each other to ensure that the appeal was timely filed, and the lack of communication was not due to reasons beyond their control. Arrington first provided his representative with insufficient information to establish the correct deadline, and then simply disappeared, leaving the matter entirely to Smith, despite the fact that Arrington had a personal responsibility to see that the appeal was timely filed. See Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437-38 (Fed. Cir. 1986) (holding that good faith reliance on the advice of petitioner's representative does not excuse a four-day delay); Phillips, 695 F.2d at 1391 (no good cause found when petitioner sent information requested by attorney post office to post office, although petitioner knew attorney's address, resulting in six-day delay in filing of appeal)
Because Petitioner did not show that the delay in filing his appeal was excusable for good cause shown, the Board did not abuse its ...