*1 products” subsections category eral (iii).
1677b(e)(2)(B)(i) to our Pursuant above, ag- use of Commerce’s conclusion level of the same gregate sales within kind of merchandise as trade and class or under section foreign product like 1677(16)(C) and not over- was reasonable 1677b(e)(2)(A) section broad. And because methodology to calculate preferred is the States, Inc. v. United profit, SKF USA CV application at its Com- was reasonable. merce
Conclusion Accordingly, judgment of the Court of International Trade is affirmed.
AFFIRMED. Petitioner, ZAMOT,
Rafael v. MERIT SYSTEMS PROTECTION
BOARD, Respondent.
No. 02-3321. Appeals, United States Court of Federal Circuit.
June
I employed by
Mr. Zamot was the United States Postal Service as a Postal Police 2000, Officer. On March Mr. Zamot was involved an altercation with another postal worker a locker room at work. The Postal Service removed Mr. Zamot for “assaulting a fellow officer” violation of policy Postal Service prohibiting vio- lence in workplace. appealed
Mr. Zamot his removal to the Systems Merit Protection Board. The ad- judge assigned ministrative to the case cause, issued order to show directing Mr. Zamot to question address the wheth- qualified er he an employee as under 5 § U.S.C. and thus whether his case appellate jurisdic- was within the Board’s tion. employees While Postal Service or- dinarily do jur- not fall within the Board’s isdiction, preference-eligible veterans excepted year service one of con- Zamot, Jacksonville, Florida, Rafael qualify tinuous service employees under pro se. statutory definition of that term. Friedman, Joyce Systems G. Merit Pro- 1005(a)(4)(A); § 39 U.S.C. 5 U.S.C. Board, DC, Washington, tection for re- 7511(a)(1)(B). § judge administrative spondent. With her on the brief were § informed Mr. Zamot that 5 U.S.C. Jeffrey Gauger Carney, and Michael At- defines a preference-eligible veteran as torneys. one who “served on active in the war, during armed forces in a [or] cam- NEWMAN, MICHEL, Before paign a which BRYSON, Judges. Circuit addition, badge has been authorized.” In Opinion for the court filed Circuit identified Of- Judge Dissenting opinion BRYSON. filed Management fice of Personnel resource Judge Circuit PAULINE NEWMAN. qualifying campaigns expedi- lists requested tions. Mr. Zamot additional BRYSON, Judge. Circuit gather requisite time to evidence that appeals Rafael Zamot from a decision of a preference-eligible veteran. In ac- Systems the Merit Protection request, cordance with Mr. Zamot’s 475, dismissing M.S.P.R. appeal of his dismissed his jurisdiction. removal action for lack of Be- 9, 2000, prejudice without on November cause the Board did not abuse its discre- gave Mr. Zamot three months to as- in finding tion either that Mr. Zamot failed supporting semble documentation and re- to show cause for the file the his petition declining for review or in January reopen motion, timely the case on its own we affirm. filed his with the Board. He sub- authorized, required had been as is badge from the Chief of Naval a letter
mitted 2108(1)(A). stating that Mr. Zamot had Operations by 5 The administra- U.S.C. Unit Commenda- a Meritorious received tive stated that the decision would April Sep- period tion for the become final unless Mr. Zamot filed peti- *3 In to the a submission 1989. tember for review with full Board April tion the repre- judge, Mr. Zamot’s administrative 4, 2001. he letter stated that obtained the sentative Rather than an with the full file great difficulty” and from “with the Board, pursue Mr. to a Zamot elected him that “Na- Navy had informed that the Employment with complaint Equal Op- the consulted and that this letter val was JAG (“EEOC”) in portunity Commission which of Prefer- purpose for his should suffice argued that he a whistleblower he was who before the Eligibility/Jurisdiction ence subject had to discrimination. An been a Mr. Zamot also submitted US-MSPB.” EEOC with the found listing he had military form decorations that Mr. did not establish that he received, Deploy- including a Sea Service against was discriminated on the basis Ribbon, Ribbon, Navy “E” a Battle ment equal prior employ- race or retaliation for Medal. and a First Good Conduct opportunity activity. The ment adminis- the judge ordered The administrative stated, best, trative then “At the arguments parties present and evidence whistleblower, Complainant was a days jurisdiction- the addressing within 20 being taliation for a whistleblower is not prefer- al whether Mr. Zamot was issue of jurisdiction within the of this forum.” responded that ence-eligible. Meanwhile, Zamot, Mr. a member of the having difficulty obtaining he was
while Reserve, Army Ready United States much of additional documentation because in duty called to active October information, he was “still was classified 10, 2002, On March Mr. Zamot filed strenuously attempting process Board. another submission with the In and he additional documentation” secure submission, sought review he as a “fully expects to be able obtain whistleblower and asked the Board to re- very shortly, which will be documentation open his case. He noted that the other immediately your office.” forwarded employee who He that he on a “War- had been involved also stated served ship was on station the Mid- altercation that led to his removal [that] support dle in direct of both Overt as having successfully East back at work after ap- Operations.” well Combat The as Covert pealed to the which had converted government objected to Mr. Zamot’s re- 60-day employee’s removal to a sus- quest for more and filed a motion pension. The Board treated Zamot’s jurisdiction, arguing dismiss for lack of filing petition a or to reopen for review Zamot had failed to show that he February 28, 2001, decision. The and that preference-eligible veteran of the Clerk Board notified Mr. there is no indication that the various rib- petition appeared his review be un- a partic- bons and medal were awarded for file, timely and Zamot to directed Mr. expedition. ular campaign days notice, within 15 of the Clerk’s limit, waiver motion for of the time and to February On the administra- signed statement submit affidavit or for lack of tive dismissed the good jurisdiction showing filing. cause for because Mr. Zamot had failed untimely through in a cam- submission had served Mr. Zamot stated paign representative, which military duty, filing had been called to active Phillips deadline. v. United States receipt of the Serv., (Fed.Cir. Clerk’s notice had Postal delayed, experienced 1982). and that he had bearing factors on whether communicating with repre- trouble there is cause for an untimely filing requested sentative. Mr. Zamot a waiver length include the delay, whether petition of the time limit for appellant limit, was notified of the time (1) review, stating that he was “under the existence beyond circumstances genuine impression or understanding appellant’s control that affected ability longer any legal standing he no comply deadline, with the appel (2) MSPB”; “adjudged” U.S. he was to lant’s if negligence, any, any unavoid *4 be a whistleblower the EEOC and he casualty able or may misfortune that have jurisdic- was therefore within the Board’s prevented timely filing. See Walls v. Mer (3) tion; and neither he nor represen- his Bd., (Fed. Sys. 1578, Prot. 29 F.3d 1582 legal training. tative had Cir.1994). peti- The Board dismissed Mr. Zamot’s We repeatedly have stated that the untimely tion for review as filed and de- waiver of a regulatory time limit based on nied request reopen his the a showing good cause “is a matter com- that, pursuant The Board noted to 5 C.F.R mitted to the Board’s discretion and that 1201.114, petition a for review must be this court will substitute its judg- own days filed within 35 of the initial decision ment for that of the Board.” Mendoza v. petitioner good unless the shows for cause Bd., Sys. Merit Prot. 966 F.2d delay filing. the The Board held that (Fed.Cir.1992) (en banc). We conclude Mr. filing untimely by nearly Zamot’s was that Mr. Zamot has not heavy carried the year one and that he had failed to show burden establishing the Board that he had diligence exercised due abused its discretion in finding that he ordinary prudence under the circum- good failed to show delay cause for the good stances sufficient to establish cause. petition his for review. The Board found that Mr. Zamot’s untime- liness was not excused pur- either days Zamot had 35 from issu suit of claims before the or by EEOC ance of review, the initial decision to seek pro respect se status. to the request With Moreover, but full year. he took a to reopen, the Board stated that the re- limit; Zamot was notified of the time the quest was not filed within a reasonable explicitly Board’s decision informed him of period that, of time and if timely, even the April the deadline for filing a request lacked merit because Mr. Zamot petition for Although review. had neither identified clear and material representative states that he and his presented errors nor new material experienced in obtaining difficulties mate evidence. Mr. Zamot petitions now this relating rials to Mr. preference- Zamot’s court for review. status, eligible merely he had to file a piece of paper petition to serve as his for II preserve rights. review order to A difficulty in obtaining evidence from Navy may have circumstance To cause for a control, out of Mr. Zamot’s but the failure filing delay, appellant must show that to file a document to petition serve as excusable under the circum stances and that appellant Finally, although review was not. Mr. Za exercised diligence due in attempting to argued meet the mot to the Board that military that, assuming authority substan- justifying a factor even we have service was (an delay, not on active he was such a period tial to review decision issue six months of “heavy for the first open), court has left has a party period. attempting burden” to demonstrate exercising full Board erred in its dis- court in this Mr. Zamot’s brief reopen. not to v. Fed. cretion See Nelson timely that his failure to file a makes clear Corp., Ins. Deposit 83 F.3d of his for review not the result petition (Fed.Cir.1996) (“Assuming, without decid- status,'confu service, military se pro may that we Board’s deci- ing, review the or the com process, sion about reopen sion not on its'own preference-eligible issue. plexity of discretion, ... for an motion abuse of we Instead, that he failed to acknowledges ”); v. discern no such abuse.... Azarkhish he re petition because file review Mgmt., Pets. Before garded unlikely it as to succeed. Office (Fed.Cir.1990) (“[I]t beyond question is not not filed a he stated that he had petitioner standing even has whether he was timely petition review because declining sponte contest the Board’s to sua understanding impression “under *5 longer standing” reopen appeal. Assuming, without de- legal that he no had following ciding, [peti- the Board the dismissal of his that she has ... standing, In petition jurisdiction. for lack of his heavy tioner has a burden to demonstrate court, informal brief this the full discre- Board abused its absolutely that he “had no reason states ”). .... Assuming may tion that we review expectation that the U.S.-MSPB able not to reopen, the decision we do not be- against Appeal rule at the would itself lieve that the Board abused its discretion D.C.) Level, (Le.Washington, as the MSPB by declining reopen Mr. Zamot’s Therefore, already quite I been clear. During period following the ad the mat Appellant pursue did not judge’s ministrative appeal dismissal of the at that time.” ter further with the MSPB prejudice, Mr. without Zamot was able an elec correctly explained, As the Board relating obtain some materials to his mili pursue remedies be tion not service, tary but those materials did not of a belief that further review would cause satisfy administrative showing be fruitless does not constitute a preference-eligible Zamot was entitled to delay. Rodg good cause for February 2001, in status. Mr. Zamot Serv., ers v. States Postal .United formed the judge through administrative (1993). Accordingly, M.S.P.R. we representative “fully his expects do not believe the Board abused its to obtain be able further documentation finding discretion in cause for the no very shortly; immediately which will be untimely filing of for review. petition your
forwarded to office.” Notwithstand B however, ing representation, he never any submitted additional documentation authorization, statutory Pursuant judge, prof nor did he 7701(e)(1)(B), § pro- the Board has U.S.C. any additional to the fer documentation by regulation may “reopen vided that it untimely petition full Board with his appeal and reconsider of a a decision review. Even he does not time,” this any on its motion 5 C.F.R. own at suggest that additional time would enable enjoys The broad dis- 1201.118. Board necessary to deciding reopen par- him to assemble the materials cretion whether to appeals, requisite showing. Although ticular court has stated make the .this peal declining case, years reopen more than two since the has been we uphold appeal, the Board’s decision. dismissed any suggestion has not offered AFFIRMED. any able to being that he is closer to show NEWMAN, preference-eligible employee PAULINE Judge, he is Circuit dissenting. day than he was on the
dismissed. dissent, I respectfully for the uncertain- preference ties as to Mr. Zamot’s veterans’ sought to Mr. Zamot could have obtain require status resolution and clarification. claim, regarding additional evidence given Consideration should have why at was reason to suggested least there the letter from the Opera- Chief of Naval believe enable him to additional would tions concerning Commendation and to evidence, has not. In- obtain such but he Regional Representa- letter from the stead, his submissions to Board tive stating consulted the April March and 2002 were directed main- Judge General Advocate and advised that whistleblower, ly asserting at that he is a Naval Operations’ letter claim lacks indepen- over which Board should for the purpose prefer- suffice jurisdiction dent because of status as ence eligibility jurisdiction. Consideration employee. Postal Service also been given should have to the difficul- request noted that a ties Mr. obtaining Zamot encountered in only unusual cir- opening granted under Navy, detailed information from the and to cumstances, such initial as when the deci- the purpose preference of the veterans’ sion clear legal contained errors when a law. *6 party proffered has new and material evi- Mr. provided Zamot that he evidence different dence that would warrant a out- years had five of active in service the Board correctly come. The observed that Navy, United from to States 1984 showing Mr. Zamot had of any made no honorably and was He subse- discharged. opinion such in legal error the initial or Reserve, joined Army Ready the quently any material that new and evidence could to in duty was active October and called affect the outcome of the Given case. the During Naval service any in absence of such the showing materi- Ribbon, ceived a Deployment Sea Service Board, als not an before the it was abuse Ribbon, a “E” Navy First Battle a Good of for discretion the Board not to have Medal, Conduct and a Meritorious Unit
reopened the Commendation. Zamot it argues
While Mr. that is unfair in Zamot encountered obstacles that he has been removed the compliance while other efforts to with the establish employee statutory involved in the of “preference eligi- altercation mere- definition a ly 60-day suspension, “prefer- endured a that con- ble” The of veteran. definition 2108(3) goes clusion to the eligible,” § merits of Mr. Zamot’s ence at 5 U.S.C. is removal and not incorporated case to whether the into 39 U.S.C. 1005(a)(4)(A)® § jurisdiction Board had grants right over removal which the case or whether he had cause for to the to veterans who untimely filing. duty Because we conclude that “served on in armed forces active legal war, the Board did not commit error or during campaign expedi- or a a [or] holding campaign abuse its discretion in that tion for badge which a has been 2108(1). jurisdiction § lacked ap- over Mr. Zamot’s authorized”. U.S.C. Eligibility/Jurisdic- Young, purpose 228 F.2d Preference Flanagan v. (D.C.Cir.1955) (“It say that is truism before Zamot tion the US-MSPB.” Mr. Act is to be con- Preference the Veterans’ to secure [the stated he was “able strued, of the possible, favor difficulty,” wherever great with because letter] (citations omitted)); Adler v. veteran.” “Naval Service and War Office were most (1954) States, 129 Ct.Cl. United letter.” reluctant release enclosed veteran Perez was overruled for service in Perez. geographically ipation” tary service alone thorization Act of Fiscal Year mean (holding No. (1997), Section dition. Perez v. Merit ans, (“[I]t preference but 105-85, is must 2108(1), plain that a soldier stationed restrict during enlarge regard qualifying campaign Div. show “involvement distant from a eligible). this court held that is 591, 594 A, them.”) inadequate, preference eligibility preference of veter- Title Gulf Systems Protection [1944] the Defense The War, (Fed.Cir.1996) XI, 1998, Pub.L. campaign Act did not holding of construing at a or partic- the issue 1102(a) that a expe- mili- base Au- jected requisite criteria. The Postal the criteria set had both Overt as well as Covert Combat reluctant stated that his service and the letter from in the Middle East he served asked Gulf War. He stated erations” Before much of it already during on through Navy personnel, who more release additional information told Board Mr. Zamot stated request Naval “Warship was classified. time, him that OPM were difficult period Operations on the direct [ ] more denied on leading to the ground Service support Navy time, He JAG met the re- station again had Op- ob- quest.
The administrative advised held that Mr. that he must establish military not shown served qualified preference, service for veterans’ authorized, badge a campaign which during active for his Naval service was not Mr. Zamot to an Office of directed (OPM) stated in period the Gulf War the statute Management Personnel resource *7 Perez, 2, August that viz. 1990 campaigns, expeditions, that or overruled listed preference January for qualify eligible periods awards that and other requested status. Mr. Zamot more the materials submitted did not show that documentation, to assemble this and statutory requirements par- he met of appeal dismissed the campaign expedition. in a or ticipating giving prejudice, without Mr. Zamot Zamot states that he in the Mr. served ap- additional months to refile the three support Gulf in of overt Persian covert and peal. operations between 1988 1989. The and referred adminis- OPM materials timely January in refiled trative that an Armed Forces state 2001, and a letter from the submitted Expeditionary Medal authorized Operations stating Chief of that Mr. Naval military participation in a United States a unit received award for meritori- involved of operation protection 1, period April ous service for the 1988 shipping in the Persian Gulf be- 30, vessels September filed a 1989. Mr. Zamot July August and 1990. Mr. by tween 1987 “appellant statement that was informed Navy concerning Zamot’s the view of that Naval was consulted statements JAG Navy and that for his officials with upon this letter should suffice consultation
1381 JAG, from and the letter but treated the an appeal as of the Operations, given weight. were Naval no Initial Decision denying veterans’ prefer- judge held The administrative year ence of almost a earlier. The Board requirements did not meet timeliness, then examined the issue and preference eligibility, referencing veterans’ ruled that Mr. Zamot had not established Service, v. States Hamilton United Postal good cause for appealing the (2000), explaining 86 M.S.P.R. Initial Decision because submission as follows: concerning delay properly sworn, was not Hamilton, however, appel- Unlike he had six months after the Initial lant this has not that he shown Decision before duty. his recall active and, received an Expeditionary Medal held that Mr. Zamot’s pro se therefore, shown that is a has not inexperience status and legal with matters entitled to preference eligible excuse, were no and dismissed the action. removal Board. Although This dismissal is now us. before Mr. Za- appellant that he argues precluded is mot, pro se petitioner, is entitled to releasing from law information about sympathetic Wright review. See v. United service due to the infor- seeret/classified involved, Service, Appeal mation See States Postal Refiled File, Tab this undisclosed (1999) (“The information board has broad discretion in is he re- insufficient to deciding whether reconsideration of a deci- ceived an cam- Expeditionary Medal in a necessary sion preserve is consistency cam- paign which a ”) ‘right achieve the result.’ The Board badge paign was authorized. obligated to exercise this discretion explanation suggests This that Mr. Zamot when compliance needed assure required to show that he received the legislative purpose system of the merit Expeditionary Medal. Zamot could employment. of federal This purpose in- reasonably understood have this decision equitable cludes application penalty— requirement to set a he could for it cannot be ignored person meet, for he did not continue that with whom Mr. Zamot scuffled the lock- however, The statutory requirement, is not veteran, room, er appealing as a received Medal, receipt Expeditionary of an but only sixty-day while Mr. suspension, Za- service for which a medal mot remains terminated. Perez, was authorized. F.3d at only Hamilton that a who states veteran The Board had the in opportunity and Expeditionary did receive an is not Medal review, obligation clarify, deed the required provide proof if warranted to correct the administrative qualifying served campaign. *8 judge’s preference. decision as to veterans’ at explains M.S.P.R. 217. Mr. Zamot Supreme recognized, As the Court has impression he was “under the or under- procedural appropriate pro latitude is standing that longer any legal he no Kerner, parties. se Haines v. 404 U.S. veteran, standing” with 519, 520-21, S.Ct. L.Ed.2d 652 pursued therefore relief. EEOC (1972). importance In view of the Mr. Zamot returned to the stat- recognizing rights, veterans’ material ing EEOC made affirmative provided Navy not have should whistleblower, finding that he was rejected by judge. seeking to dismissal on this Oper The statement of of Naval ground. However, the Board did con- not action, ations, JAG, sider the case as a whistleblower the view of and the hand. The concerning his matter should be remanded for OPM materials consideration, service, inter- should have been area rejected out of preted generously,