       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                DOUGLAS N. HINGA,
                    Petitioner,

                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3171
              __________________________

   Petition for review of the Merit Systems Protection
Board in DA0752100058-I-1.
              ___________________________

              Decided: January 21, 2011
             ___________________________

   DOUGLAS N. HINGA, Houston, Texas, pro se.

     SARA B. REARDEN, Attorney, Office of General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel. Of counsel was PATRYK J.
DRESCHER, Trial Attorney, Commercial Litigation Branch,
HINGA   v. MSPB                                         2


Civil Division, United States Department of Justice, of
Washington, DC.
               __________________________

  Before NEWMAN, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.

                        DECISION

    Douglas N. Hinga appeals from a final decision of the
Merit Systems Protection Board dismissing his appeal to
the Board as untimely. We affirm.

                      BACKGROUND

    Mr. Hinga was employed as a mail handler by the
United States Postal Service. Beginning on September 8,
2008, Mr. Hinga stopped reporting for duty. He did not
respond to two official directives sent to his address of
record in early October 2008, and he continued to be
absent from work after that time. On November 28, 2008,
the Postal Service sent Mr. Hinga a notice of proposed
removal, to which he did not respond. On January 12,
2009, the Postal Service sent him a letter of decision
removing him effective January 23, 2009, for chronic
unexcused absence without leave. In the letter of deci-
sion, the Postal Service advised Mr. Hinga of his right to
appeal the decision within 30 calendar days of the effec-
tive date of his removal. The Board received an appeal
from Mr. Hinga more than nine months later, on October
28, 2009.

    Before the Board, Mr. Hinga represented that he had
been arrested in 2008 for driving while intoxicated.
Because the offense was his third DWI violation, he was
placed in a facility with substance abuse treatment ser-
3                                            HINGA   v. MSPB


vices pursuant to a court order. Mr. Hinga stated that he
was confined in that facility until July 20, 2009, and that
he was then sent to a “transitional treatment center” for
an additional three months. In his notice of appeal to the
Board, Mr. Hinga argued that the Postal Service had not
given him an “opportunity to explain [his] position” and
had not considered a letter Mr. Hinga allegedly sent on
January 26, 2009, to his union representative, requesting
the representative’s assistance in “salvaging” Mr. Hinga’s
Postal Service job. Mr. Hinga stated in his appeal that he
had received the Postal Service’s letter of decision on
January 23, 2009, the effective date of his removal.

    After Mr. Hinga filed his appeal, the administrative
judge who was assigned to his case issued an order ex-
plaining the requirement for filing a timely appeal and
the factors the Board considers when deciding whether to
waive the timeliness requirement. The administrative
judge ordered Mr. Hinga to respond with evidence or
argument establishing that his appeal was timely or that
there was good cause for the delay in filing. In his re-
sponse, Mr. Hinga stated that he was unable to file a
timely appeal during his time in the treatment facility
“due to reasons beyond [his] control.” Mr. Hinga also
stated that, after being released from the facility, he
attempted to file an electronic appeal with the Board in
August 2009 and mistakenly believed he had succeeded in
doing so.

    The administrative judge dismissed Mr. Hinga’s ap-
peal because it was untimely and because Mr. Hinga had
not shown good cause for its untimeliness. The adminis-
trative judge cited the Board’s regulation requiring that
an appeal be filed within 30 days of either the effective
date of the agency action or the date the appellant re-
ceives the agency’s decision, whichever is later. See 5
HINGA   v. MSPB                                            4


C.F.R. § 1201.22(b). Because Mr. Hinga received the
agency’s final decision letter on the date it became effec-
tive, January 23, 2009, his deadline for appealing the
Postal Service’s decision was February 23, 2009. The
administrative judge noted that Mr. Hinga’s appeal was
not actually filed for another eight months and was
therefore untimely, even assuming that Mr. Hinga’s
unsuccessful attempt to file an electronic appeal on Au-
gust 12, 2009, tolled the filing period.

     The administrative judge then addressed whether Mr.
Hinga had shown good cause for waiving the Board’s
timeliness regulation.         See 5 C.F.R. §§ 1201.12,
1201.22(c). The administrative judge noted that the order
regarding timeliness had advised Mr. Hinga of the need to
produce evidence and argument showing that he had good
cause for missing the filing deadline. The administrative
judge concluded that Mr. Hinga’s response did not dem-
onstrate good cause. Mr. Hinga’s response stated only
that his involuntary stay in the treatment facility had
prevented him from pursuing his appeal rights. The
administrative judge determined that incarceration by
itself is not sufficient to establish good cause for the late
filing of an appeal. Certified delivery receipts of notices
from the Postal Service indicated that the notices in
question had been delivered to Mr. Hinga’s address of
record, and Mr. Hinga admitted that he had received
notice of his removal in January 2009. The administra-
tive judge concluded that Mr. Hinga had failed to show
that he could not have responded to the letter of removal
by filing a timely appeal.

    With respect to Mr. Hinga’s suggestion that his union
representative should have taken steps to protect his
appeal rights, including filing an appeal on his behalf, the
administrative judge found that Mr. Hinga was responsi-
5                                             HINGA   v. MSPB


ble for any failure on the part of his union representative
to take such steps, and that the union representative’s
failure to initiate the appeal process did not constitute
good cause for his untimely filing. The administrative
judge also noted that, prior to the present case, Mr. Hinga
had prosecuted two other appeals before the Board. The
administrative judge viewed that history as indicative of
Mr. Hinga’s familiarity with Board appeal procedures. In
light of all the evidence, the administrative judge found
that Mr. Hinga had “failed to prove he exercised ordinary
prudence or due diligence under the circumstances” and
therefore had failed to establish good cause for his un-
timely filing.

    Mr. Hinga filed a timely petition for review by the full
Board. Along with his petition, Mr. Hinga submitted a
statement asserting that, contrary to his earlier admis-
sion, he had not received the agency’s notice of removal on
January 23, 2009. In addition, Mr. Hinga stated that
another individual had signed for the certified notifica-
tions sent to Mr. Hinga’s house, and that those notifica-
tions, including the letter of decision, had not been
forwarded to him. The Board refused to consider Mr.
Hinga’s submission of that evidence, noting that it did not
constitute new and material evidence that was unavail-
able to him prior to the administrative judge’s decision.
The Board also refused to consider a copy of the letter
that Mr. Hinga claimed to have written to his union
representative on January 26, 2009. In the letter, Mr.
Hinga requested that the union representative take steps
to save his job and asked for “any assistance you can
provide.” The letter did not specifically request that the
union representative file an appeal on his behalf with the
Board. The Board concluded that Mr. Hinga had not
demonstrated that the copy of the letter was unavailable
before the administrative judge’s decision, nor had he
HINGA   v. MSPB                                            6


explained how the letter would affect the Board’s decision
on the issues of timeliness or good cause. After the Board
denied the petition for review, Mr. Hinga petitioned for
review by this court.

                        DISCUSSION

     The decision to waive the regulatory time limit for fil-
ing an appeal is within the sound discretion of the Board.
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.
Cir. 1992) (en banc). The appellant bears the burden of
showing that he exercised “diligence or ordinary pru-
dence” in the prosecution of an appeal to justify waiver of
the timeliness requirement. Id. In this case, the Board
did not find evidence of diligence or prudence by Mr.
Hinga. As the administrative judge noted, incarceration
alone is insufficient to explain Mr. Hinga’s failure to
respond to the notices sent to his address of record. See,
e.g., McCoy v. U.S. Postal Serv., 112 M.S.P.R. 256, 259
(2009). Mr. Hinga was clearly informed of the factors
used by the Board in assessing whether waiver of timeli-
ness is proper, yet he failed to produce evidence indicating
that he was unable to file a timely appeal. The adminis-
trative judge credited Mr. Hinga’s admission that he had
received the letter of decision in January 2009 and noted
that, even knowing that he had been removed, Mr. Hinga
failed to file his appeal for more than nine months. The
administrative judge added that even if Mr. Hinga’s
appeal were deemed to have been filed as of the date in
August 2009 when he attempted to file an electronic
appeal, that attempt was made more than six months
after Mr. Hinga received the notice of removal and 23
days after he was released from confinement, further
indicating a lack of diligence in appealing his removal.
Under these circumstances, we conclude that the Board
7                                              HINGA   v. MSPB


did not abuse its discretion in finding that Mr. Hinga
failed to show good cause for his belated filing.

    Mr. Hinga makes the procedural argument that the
Board failed to apply two of its regulations, 5 C.F.R.
§§ 1201.12 and 1201.21, in deciding the timeliness and
good cause issues. The administrative judge, however,
explicitly considered whether to waive the timeliness
requirement pursuant to section 1201.12 and determined
that Mr. Hinga had not shown good cause for waiver.
Section 1201.21 dictates the procedures federal agencies
must follow to give notice to employees of decisions ap-
pealable to the Board. As discussed earlier, Mr. Hinga
admitted in his notice of appeal that he had received
notice of the Postal Service’s decision on the effective date
of his removal. Mr. Hinga has not alleged that the con-
tents of the notice were deficient in any way that would
implicate section 1201.21.

    Mr. Hinga claims that relevant information was not
considered in his appeal to the Board, but the record does
not support that claim. Although Mr. Hinga has submit-
ted new material with his informal brief in this court,
that material is not properly before us because it was not
presented to the Board. See Lizut v. Dep’t of the Army,
717 F.2d 1391, 1396 (Fed. Cir. 1983).

    Finally, Mr. Hinga alleges that the Board should have
applied the Veterans Employment Opportunities Act
(“VEOA”), the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), and the corre-
sponding regulations at 5 U.S.C. §§ 1208.1-1208.26, to his
case. Those statutes and regulations are not pertinent to
the timeliness of the appeal of his removal. Moreover,
Mr. Hinga indicated in his notice of appeal that he was
not filing claims under VEOA or USERRA. As to Mr.
HINGA   v. MSPB                                         8


Hinga’s assertion that his constitutional rights under the
Fourth, Fifth, and Sixth Amendments have been violated,
that unelaborated claim finds no support in the record.

    In sum, Mr. Hinga has failed to demonstrate that the
Board abused its discretion in dismissing his appeal as
untimely filed.

   No costs.

                      AFFIRMED
