NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 

2007-3235 

LARRY R. ROBEY, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Larry R. Robey, of Indianapolis, Indiana, pro se. 

Michael A. Carney, General Attorney, Office of the General Counsel, United 

States Merit Systems Protection Board, of Washington, DC, for respondent. With him 

on the brief was B. Chad Bungard, General Counsel. 

Appealed from: United States Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3235 

LARRY R. ROBEY, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent. 

__________________________ 

DECIDED: November 6, 2007 

 __________________________ 

Before MAYER, LOURIE, and PROST, Circuit Judges. 

PER CURIAM. 

Larry R. Robey appeals the final decision of the Merit Systems Protection Board 

(“Board”) dismissing his appeal of his removal by the U.S. Postal Service (“Postal 

Service”) as untimely and denying his attempt to reopen his withdrawn appeal. Robey 

v. U.S. Postal Serv., 105 M.S.P.R. 539 (Apr. 17, 2007). Because Mr. Robey has not 

shown good cause for the delay in filing his appeal and because there is no basis to 

reopen the prior appeal, we affirm. 

BACKGROUND 

 Mr. Robey was a preference-eligible veteran employed by the Postal Service as 

a review clerk. Effective November 25, 2005, the Postal Service issued a letter of 

decision removing Mr. Robey from his position because he used sick leave and leave 
under the Family Medical Leave Act while performing work in his helicopter business. 

The letter of decision explained in detail Mr. Robey’s right to appeal to the Board, 

including the time period for appeal, as well as his right to concurrently file a grievance. 

Mr. Robey appealed the removal action to the Board on December 1, 2005, but then 

withdrew his appeal on December 22, 2005, indicating that he would instead challenge 

his removal through his union. The Board issued an initial decision dismissing his 

appeal with prejudice. The initial decision became final on January 26, 2006. 

Thereafter, Mr. Robey filed a grievance through his union. The grievance was 

ultimately submitted to arbitration, where an arbitrator issued a decision denying his 

grievance on June 21, 2006. 

 On July 26, 2006, Mr. Robey submitted another appeal of his removal to the 

Board. The Board issued a show cause order for why the appeal should not be 

dismissed under the doctrine of res judicata. In response, Mr. Robey asserted that he 

was seeking review of the arbitrator’s decision denying his union grievance. The Board 

issued an initial decision, dismissing the appeal for lack of jurisdiction given the 

dismissal with prejudice of the earlier appeal. After Mr. Robey filed a petition for review, 

however, the Board vacated its initial decision. To the extent Mr. Robey’s appeal was 

regarded as a request to reopen his prior appeal, the request was denied. To the extent 

the appeal was viewed as a new appeal, the Board dismissed the appeal as untimely 

without a showing of good cause for the delay. 

DISCUSSION 

We must affirm the decision by the Board unless we find it to be: “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

2007-3235 2
without procedures required by law, rule, or regulation having been followed; or (3) 

unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Walls v. Merit Sys. Prot. Bd., 

29 F.3d 1578, 1581 (Fed. Cir. 1994). 

 Preference-eligible employees of the Postal Service may: (1) appeal an agency 

action directly to the Board; (2) pursue grievance/arbitration procedures; or (3) pursue 

both within certain limitations. Stahl v. Merit Sys. Prot. Bd., 83 F.3d 409, 411 (Fed. Cir. 

1996). Although Mr. Robey initially appealed the removal action by the Postal Service 

to the Board, he later withdrew the appeal and instead pursued grievance/arbitration 

procedures through the union. Now, Mr. Robey appears to be seeking review of the 

determination by the arbitrator. As a Postal Service employee, however, Mr. Robey has 

no right of Board review of the arbitration decision. Fedon v. U.S. Postal Serv., 78 

M.S.P.R. 657, 660 (1998); Marjie v. U.S. Postal Serv., 70 M.S.P.R. 95, 98 (1996). 

Although the Board may take the arbitration decision into consideration when deciding 

an appeal over which it otherwise has jurisdiction and in which the timeliness 

requirements have been met, Fedon, 78 M.S.P.R. at 660; Lipsky v. U.S. Postal Serv., 

58 M.S.P.R. 555, 557-58 (1993), the Board may only review a Postal Service arbitration 

decision within the context of a timely appeal of the agency action. Jackson v. U.S. 

Postal Serv., 57 M.S.P.R. 57, 59 (1993).1 

 1

 The Federal Circuit likewise lacks jurisdiction to review an arbitrator’s 

decision pursuant to a Postal Service agreement with the union. Burke v. U.S. Postal 

Serv., 888 F.2d 833, 834 (Fed. Cir. 1989). While 5 U.S.C. § 7121 authorizes the same 

review of arbitration decisions by the Federal Circuit as is available for decisions by the 

Board, § 7121 and its implementing regulations are not applicable to Postal Service 

employees. Id.

2007-3235 3
2007-3235 4

 In this case, Mr. Robey withdrew his prior appeal, resulting in a dismissal with 

prejudice. When Mr. Robey filed his second appeal, the Board properly concluded that 

there was no basis to reopen the earlier appeal because there was no evidence of 

unusual circumstances. Duncan v. U.S. Postal Serv., 96 M.S.P.R. 448, 451-52 (2004). 

Therefore, the Board viewed his second appeal as a new appeal and considered 

whether there was good cause for waiving the filing deadline. McNeil v. U.S. Postal 

Serv., 98 M.S.P.R. 18, 22 (2004); Nabors v. U.S. Postal Serv., 31 M.S.P.R. 656, 659 

(1986), aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). As explanation for his delay in 

filing, Mr. Robey submitted that he had financial troubles, that his house was sold in a 

foreclosure sale, and that he was under care by a physician for thoracic and lumbar 

back pain. In determining that Mr. Robey did not establish good cause, the Board noted 

that the delay of almost seven months was significant, that financial difficulty does not 

establish good cause, and that the physician’s letter failed to explain how Mr. Robey’s 

medical condition prevented him from timely filing his appeal. We agree. Accordingly, 

we find that the final decision by the Board dismissing Mr. Robey’s appeal was not 

arbitrary, capricious or an abuse of discretion. 

CONCLUSION 

For the foregoing reasons, we affirm the decision of the Board. 

No costs.