856 F. 2d 201 - Horne v. United States Postal Service

Lee W. Horne, Jr., pro se, seeks review of the final decision of the Merit Systems Protection Board (MSPB or board), docket No. SF07528710524, dismissing petitioner's appeal on his own motion. We affirm.

Mr. Horne, a custodial group leader, was discharged by the United States Postal Service for sexual harassment involving three female employees and for several instances of absence without official leave. His prior extensive disciplinary record was considered in assessing the penalty. An appeal followed.

At the hearing, an administrative judge of the MSPB advised Mr. Horne that he could find no mitigating evidence on petitioner's behalf. During the hearing, the parties agreed to a settlement, the result of which being that petitioner would move to withdraw his appeal and would resign. The appeal was dismissed in an initial decision by the administrative judge on August 10, 1987. The administrative judge determined that the settlement agreement was lawful on its face and was fairly reached by the parties. The board declined review of this decision which became final on January 19, 1988.

Notwithstanding dismissal of the appeal to the board on petitioner's own motion and as a result of the settlement and voluntary resignation, he now appeals to this court. In so doing, he makes several bald allegations not made to the board and therefore we decline to consider them. Spezzaferro v. FAA, 807 F.2d 169, 174 (Fed.Cir.1986); Meglio v. MSPB, 758 F.2d 1576 (Fed.Cir.1984). The only question now before this court is whether the MSPB abused its discretion when it denied Mr. Horne's petition for review. Asberry v. United States Postal Service, 692 F.2d 1378 (Fed.Cir.1982). In his initial decision, the administrative judge advised petitioner that in order to gain review by the board he would need to show that an error of law had been made or that he had found new and material evidence not previously available to him. Petitioner did neither; nor did he show the board anything to suggest that the settlement was tainted with invalidity by fraud, coercion, or mutual mistake. All he said was that he wanted to appeal. The board, pursuant to its published regulations, properly declined review. 5 C.F.R. Sec. 1201.115 (1988). It did not abuse its discretion or otherwise act unlawfully.

This is an egregiously frivolous appeal which has wasted judicial resources and the resources of the Merit Systems Protection Board and the Department of Justice.

Petitioner is assessed double costs. Fed.R.App.P. 38.