                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2008-3046


                              HAROLD H. MISTELSKE,

                                                               Petitioner,

                                          v.


                     MERIT SYSTEMS PROTECTION BOARD,

                                                               Respondent.


      Harold H. Mistelske, of Saint Paul, Minnesota, pro se.

      Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B.
Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

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                            NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2008-3046

                                 HAROLD H. MISTELSKE,

                                                                         Petitioner,

                                              v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                                         Respondent.


Petition for review of the Merit Systems Protection Board in CH0752070285-I-1.
                            ___________________________

                           DECIDED: March 10, 2008
                           ___________________________


Before MICHEL, Chief Judge, SCHALL and DYK, Circuit Judges.

PER CURIAM.

      Petitioner Harold H. Mistelske (“Mistelske”) petitions for review of a decision of

the Merit Systems Protection Board (“Board”) dismissing his untimely appeal for failure

to establish good cause for the delay, and denying his request to reopen the appeal.

We affirm.

                                    BACKGROUND

      Mistelske was employed by the Department of Veterans Affairs (“VA”) as a cook

with the Veterans Canteen Service in Minneapolis, Minnesota. On December 22, 2006,

the VA issued a notice of proposed removal based on a charge of misconduct. On

January 19, 2007, the VA notified Mistelske of its decision to remove him from

employment effective February 2, 2007.       Mistelske designated union representative

Bryce Davis (“Davis”) as his representative, and filed a timely petition for appeal of the
VA’s removal decision with the Board on February 27, 2007. The Board issued an

acknowledgement order on March 2, 2007, which informed Mistelske that the Board

might not have jurisdiction over his appeal. The Board noted that canteen workers

employed under 38 U.S.C. § 7802(e) do not meet the definition of “employee” under 5

U.S.C. § 7511 and generally do not have appeal rights to the Board.           The Board

ordered Mistelske to file, within fifteen days, evidence and argument proving that his

appeal was within the Board’s jurisdiction. Davis did not file any such evidence or

argument, and on March 16, 2007, he withdrew Mistelske’s appeal. On the same day,

the administrative judge issued an initial decision dismissing the appeal because “[t]he

appellant’s withdrawal of this appeal is an act of finality and has the effect of removing

the appeal from the Board’s jurisdiction.” App. to Resp’t’s Br. at 7. The decision stated

that it would “become final on April 20, 2007, unless a petition for review [by the full

Board] is filed by that date.” Id. at 8 (emphasis in original). No such petition was filed

before the April 20, 2007, deadline.

      On April 27, 2007, acting on the advice of an attorney at a walk-in legal clinic,

Mistelske electronically filed a document entitled “Reopening an Appeal Dismissed

Without Prejudice.” By a letter dated May 2, 2007, the Board acknowledged receipt of

this filing and informed Mistelske that the initial decision dismissing his appeal as

withdrawn had become final on April 20, 2007. The letter further stated, “[I]f you desire

to file a Petition for Review, I have enclosed a copy of your Initial Decision with

instructions for filing your supporting evidence and argument to the Clerk of the Board.”

App. to Petr’s Br. at 1-2. On May 22, 2007, Mistelske filed a petition for review of the

initial decision and a motion to accept his late-filed petition.       The motion was




2008-3046                               2
accompanied by a sworn statement in which Mistelske stated that he had not received a

letter notifying him that his appeal had been withdrawn until “near the ‘finality’ date” of

April 20, 2007, Mistelske v. Department of Veterans Affairs, 106 M.S.P.R. 554, 557

(2007), that he did not know he could file a petition for review on his own, and that by

the time he had found a volunteer legal service to assist him the deadline for filing had

passed. Mistelske further stated that he had unsuccessfully tried to file the petition for

review electronically.

       The Board found it appropriate to treat Mistelske’s “[petition for review] of an

appellant-initiated dismissal of a[n appeal] as a late-filed [appeal of the agency action]

or as a request to reopen and reinstate the prior appeal.” Id. Considered as an appeal

of the agency action, that appeal would have been due on March 5, 2007, and

Mistelske’s filing was approximately two and a half months late. The Board therefore

analyzed whether Mistelske had established good cause for the delay to justify waiving

the time limit for filing under 5 C.F.R. §§ 1201.12 and 1201.22(c). It considered four

factors relevant to this inquiry: (1) the length of the delay; (2) the reasonableness of the

appellant’s excuse and his showing of due diligence; (3) whether the appellant is

proceeding pro se; and (4) whether appellant has presented evidence of circumstances

beyond his control that affected his ability to comply with the time limits or of

unavoidable casualty or misfortune that prevented him from timely filing his petition.

The Board found that Mistelske had not demonstrated good cause for the delay. The

Board determined that the two and half month delay was not minimal, that Mistelske

was responsible for his representative’s actions in withdrawing the appeal, that

Mistelske had not demonstrated that he did not receive timely notice of the dismissal of




2008-3046                                3
his appeal, and that he had failed to explain adequately in the statement supporting his

motion why he had not requested an extension of the time to file an appeal. Although

the Board acknowledged Mistelske’s pro se status, it found this factor insufficient to

outweigh the others and establish good cause for delay.

         The Board then considered whether Mistelske had satisfied the threshold

requirement of exercising due diligence for purposes of reopening his appeal under 5

U.S.C. § 7701(e)(1)(B). The Board determined that he had not.

         The Board therefore dismissed Mistelske’s petition as an untimely appeal, and

denied the request to reopen the prior appeal. It did not address whether the Board

would have had jurisdiction over the appeal if it had been timely filed. Mistelske timely

appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

                                       DISCUSSION

         Our review of Board decisions is limited to setting aside agency actions, findings,

or conclusions that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c). As we have explained, the issue of “whether the regulatory time limit for an

appeal should be waived based upon a showing of good cause is a matter committed to

the Board’s discretion and this court will not substitute its own judgment for that of the

Board.” Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en

banc).

         The Board, in keeping with its precedent, did not focus on the timeliness of

Mistelske’s petition for review to the full Board. Instead, it treated Mistelske’s filing as a




2008-3046                                 4
late-filed appeal of the agency action or a request to reopen the prior appeal of the

agency action, and analyzed whether Mistelske had established either good cause for

the late filing or that he had exercised due diligence in seeking to reopen the appeal.

See Zamot v. Merit Sys. Protection Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003); 5 C.F.R.

§§ 1201.12, 1201.22(c) (2007). The Board concluded that he had not satisfied these

standards. Mistelske argues on appeal that the Board should have found good cause

or diligence for reopening based on his representative’s withdrawal of the initial petition

for appeal without his consent, his failure to receive notice of that withdrawal within a

reasonable time, the emotional strain and illness he was suffering at the time, his pro se

status, and his attempt to electronically file his appeal in April 2007.

       The Board correctly found that Mistelske “ha[d] not shown that the time limit

should be waived on the basis that Davis’s withdrawal of the appeal was invalid.”

Mistelske, 106 M.S.P.R. at 557. We have explained that “a person is bound by the

consequences of his representative’s conduct, which includes both his acts and

omissions.” Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437 (Fed. Cir. 1986)

(citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)). Mistelske’s allegations

that Davis withdrew the initially filed appeal without his consent are therefore insufficient

to establish good cause.       Additionally, the Board was permitted to presume that

Mistelske was notified of the withdrawal within a reasonable time, because Mistelske did

not assert that he had not received the copy of the initial decision that was mailed to

him.

       Mistelske’s allegations of emotional strain and illness, offered as proof of

circumstances beyond his control that prevented him from timely filing his appeal, were




2008-3046                                 5
not presented to the Board and may not be raised for the first time on appeal to this

court. See Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985).

       Finally, although the Board did not explicitly address the April 27, 2007, electronic

filing, either in the context of the good cause factors or the threshold due diligence

requirement for reopening, we do not think that this failure justifies setting aside the

Board’s decision. As the Board’s May 2, 2007, letter makes clear, Mistelske submitted

an incorrect pleading on April 27, 2007, and we cannot say that the Board’s refusal to

excuse the late filing on this basis was arbitrary and capricious or an abuse of

discretion.

                                      CONCLUSION

       For the reasons set forth above, the decision of the Board is affirmed.

                                         COSTS

       No costs.




2008-3046                                6
