Linda A. Cunningham v. The Department of the Army

852 F.2d 1292 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Linda A. CUNNINGHAM, Petitioner, v. The DEPARTMENT OF the ARMY, Respondent. No. 88-3038. United States Court of Appeals, Federal Circuit. June 10, 1988. Before MARKEY, Chief Judge, COWEN, Senior Circuit Judge, and MAYER, Circuit Judge. PER CURIAM. DECISION [1] The decision of the Merit Systems Protection Board (board), No. DC07528710406, dismissing as untimely filed Linda A. Cunningham's (Cunningham's) appeal from her May 8, 1987 removal, is affirmed. OPINION [2] Cunningham's appeal was in fact filed more than 20 days after the effective date of her removal. 5 C.F.R. Sec. 1201.22(b) (1988). Her arguments relate to why such untimeliness should be excused. That issue "is a matter committed to the board's discretion and this court will not substitute its own judgment for that of the board." Phillips v. United States Postal Service, 695 F.2d 1389, 1390 (Fed.Cir.1982); see Sheeran v. Merit Sys. Protection Bd., 746 F.2d 806, 807 (Fed.Cir.1984). Nothing Cunningham has told us shows that the board abused its discretion. [3] Cunningham's attempt to argue the merits of her case is misguided. The board's decision dismissed for untimeliness. It is that decision, and only that decision, that we review. 5 U.S.C. Sec. 7703(c) (1982). [4] We affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c); see Phillips, 695 F.2d at 1390.