       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

             RONALD NEAL BATDORF,
                   Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2014-3080
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-0752-11-0461-I-1.
                ______________________

             Decided: September 11, 2014
               ______________________

    RONALD NEAL BATDORF, of Virginia Beach, Virginia,
pro se.

   KATRINA LEDERER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
                ______________________

 Before PROST, Chief Judge, NEWMAN and REYNA, Circuit
                        Judges.
2                                          BATDORF   v. MSPB



PER CURIAM.
    Ronald Neal Batdorf seeks review of a decision of the
Merit Systems Protection Board (“Board”) dismissing his
petition for review as untimely filed. See Batdorf v. Dep’t
of Defense, No. DC-0752-11-0461-I-1 (M.S.P.B. Jan. 16,
2014). Because Mr. Batdorf has failed to show that the
Board’s dismissal of his petition for review was arbitrary,
capricious, or otherwise not in accordance with the law,
we affirm.
                      BACKGROUND
    Mr. Batdorf worked for the Department of Defense
(“DOD”) as an Operations Research Analyst. Prior to
June 1, 2010, the DOD’s employees were classified under
the National Security Personnel System pay scale. In
June 2010, however, the DOD converted all of its employ-
ees to the General Schedule pay scale. See National
Defense Authorization Act for Fiscal Year 2010, Pub. L.
No. 111-84, 123 Stat. 2190, 2498. Mr. Batdorf was con-
verted to a GS-14 grade.
    On March 24, 2011, Mr. Batdorf filed an appeal with
the Board, alleging that he should have been placed in a
GS-15 position. After the DOD filed a motion to dismiss,
the administrative judge issued an order noting both that
Mr. Batdorf had not alleged any loss in pay as a result of
the DOD’s action and that the Board does not have juris-
diction over reduction-in-rank appeals. The order also
stated that Mr. Batdorf’s appeal was untimely; it request-
ed Mr. Batdorf to file evidence and argument to prove
that the matter was within the Board’s jurisdiction and
timely filed.
    On May 6, 2011, Mr. Batdorf withdrew his appeal,
stating that he wished to pursue other options with his
local command. The administrative judge then issued an
Initial Decision on May 10, 2011, dismissing Mr. Batdorf’s
appeal. The Initial Decision also advised Mr. Batdorf of
BATDORF   v. MSPB                                           3



the procedures and deadline for filing a petition for re-
view, and it became the Board’s Final Decision on June
14, 2011.
    On September 18, 2013, Mr. Batdorf filed a petition
for review of his case. In this petition, Mr. Batdorf al-
leged that the administrative judge had “persuad-
ed/advised” him to withdraw his Board appeal more than
two years ago and pursue an internal solution within the
DOD instead since reduction-in-rank appeals are not
within the Board’s jurisdiction. Mr. Batdorf also argued
that he had discovered new evidence after the time period
for filing had elapsed. On October 17, 2013, Mr. Batdorf
further filed a motion to waive the time limit for good
cause and motion to reopen, where he stated that he had
pursued an administrative solution to his complaint, but
that did not lead to a resolution of the matter. He also
stated that only after exhausting that option did he
consult with an attorney, who advised him to seek to
reopen his Board appeal.
    On January 16, 2014, the Board issued a Final Order
dismissing Mr. Batdorf’s petition for review as untimely.
The Board found that Mr. Batdorf had filed his petition
for review more than two years after the date of the
Initial Decision and had failed to show he exercised due
diligence or ordinary prudence given the circumstances of
his case. For example, the Board noted that Mr. Batdorf
alleged that he discovered new and material evidence on
April 16, 2013, but he did not file his petition for review
until September 18, 2013. Mr. Batdorf now appeals the
Board’s dismissal of his petition for review.
                        DISCUSSION
    Under the Board’s regulations, a petition for review
must be filed within thirty-five days of the issuance of an
Initial Decision, or, if the petitioner shows that the Initial
Decision was first received more than five days after the
date of issuance, it must be filed within thirty days after
4                                           BATDORF   v. MSPB



the date the petitioner or his representative received the
Initial Decision. 5 C.F.R. § 1201.114(e). However, the
Board will waive the time limit upon a showing of good
cause. 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(g).
    The petitioner carries the burden to show, by prepon-
derant evidence, that good cause existed for the delay.
Williams v. Office of Pers. Mgmt., 71 M.S.P.R. 597, 601
(1996). To establish good cause, the petitioner “need not
show that it was impossible to file timely, only that the
delay was excusable under the circumstances where
diligence or ordinary prudence had been exercised.”
Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed.
Cir. 1982).
     We must affirm the Board’s decision to deny a good
cause waiver of a filing deadline unless the decision is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). We will not substitute our own judg-
ment for that of the Board in determining whether the
regulatory time limit for an appeal should be waived
based upon a showing of good cause. Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc).
     In this case, Mr. Batdorf requests a good cause waiver
for two reasons. First, Mr. Batdorf argues that he demon-
strated to the Board that he exercised due diligence from
April 16, 2013, when he received the new evidence, to
September 18, 2013, when he filed his petition for review.
He provided a timeline of meetings, e-mails, and letters
he allegedly sent to various persons during the time
period. The Government argues that, while this may
evidence diligence in seeking an administrative resolu-
tion, Mr. Batdorf’s proffered series of events fails to
BATDORF   v. MSPB                                        5



demonstrate that Mr. Batdorf exercised due diligence in
seeking to reopen his appeal.
     In view of the Board’s evaluation of these considera-
tions, we conclude that nothing in the Board’s dismissal of
Mr. Batdorf’s petition for review can be characterized as
arbitrary, capricious, or otherwise not in accordance with
the law. The burden was on Mr. Batdorf to show that he
was diligent from April 16, 2013, the date he received the
new evidence, until September 18, 2013, the date he filed
his petition for review. We note, however, that there are
several noticeable gaps in Mr. Batdorf’s alleged timeline.
For example, we fail to see how pursuing an Inspector
General investigation for almost two months shows
diligence in seeking to reopen an appeal with the Board.
And, in any event, Mr. Batdorf has failed to adequately
explain why he waited more than two months from when
he was advised by the Joint Staff Inspector General to file
with the Board to when he actually filed his petition.
    Next, Mr. Batdorf argues that his prior withdrawal of
his appeal was essentially invalid, as he never would have
withdrawn his appeal if not for the administrative judge’s
advice. The Government argues that his withdrawal of
the appeal was an act of finality. Cason v. Dep’t of the
Army, 118 M.S.P.R. 58, ¶ 5 (2012). And a withdrawn
appeal will typically not be reinstated in the absence of
unusual circumstances, such as misinformation or new
and material evidence. Id. According to the Government,
Mr. Batdorf has not established such an unusual circum-
stance, and he relies only on allegations regarding what
the administrative judge told him.
    We again agree with the Government. Even assum-
ing that the administrative judge advised Mr. Batdorf
that he was likely to find that the Board did not have
jurisdiction over the appeal, Mr. Batdorf has not alleged
that the advice was misleading. In fact, the administra-
tive judge made similar statements in the Order to Show
6                                          BATDORF   v. MSPB



Cause, which explained that reduction-in-rank appeals
are not within the Board’s jurisdiction. Mr. Batdorf has
also not alleged that the administrative judge assured
him of a favorable outcome if he withdrew his appeal; the
administrative judge merely indicated that he did not
believe the Board had jurisdiction to hear the appeal and
offered an alternative course of action. We conclude that
the administrative judge’s statements also do not excuse
Mr. Batdorf’s late filing.
                       CONCLUSION
    For the foregoing reasons, we conclude that Mr.
Batdorf has failed show that the Board abused its discre-
tion in dismissing his petition for review as untimely.
Therefore, we affirm the Board’s Final Order.
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
