Gerard R. Martin v. Federal Emergency Management Agency

925 F.2d 1479 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Gerard R. MARTIN, Petitioner, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, Respondent. No. 90-3432. United States Court of Appeals, Federal Circuit. Jan. 18, 1991. DECISION PER CURIAM. — 1 — Martin appeals the order of the Merit Systems Protection Board (MSPB), Docket No. DE075290170012 (June 7, 1990), denying Martin's petition for review of the MSPB's initial decision dismissing Martin's appeal as untimely filed. Martin had filed with the MSPB an appeal which challenged his resignation from the Federal Emergency Management Agency (FEMA) as involuntary. We affirm. OPINION — 2 — The MSPB must dismiss an appeal if the appellant fails to submit the appeal within 20 days of the effective date of the action being appealed, unless the appellant shows good reason for the delay. 5 C.F.R. Sec. 1201.22(b & c). Martin is here appealing his separation resulting from his discontinued service retirement, effective October 13, 1989, not the later denial of his request for disability retirement. Unlike the parties in some of the cases cited by Martin, the MSPB found, in light of many factors, including Martin's experience at FEMA with federal employee disciplinary proceedings and his pre-resignation consultation with an attorney, that Martin "knew, or should have known, that the right to appeal to the Board must be exercised within 20 days of the effective date of the action being appealed." The MSPB therefore found that the one year and ten day delay in filing was not excusable, and dismissed Martin's appeal. — 3 — This Court can set aside the MSPB's decision dismissing Martin's petition only if that decision was: — 4 — (1) unsupported by substantial evidence; — 5 — (2) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or — 6 — (3) obtained without procedures required by law, rule, or regulation. — 7 — 5 U.S.C. Sec. 7703(c). The MSPB's decision has not been shown to violate this standard, and therefore must be upheld.