          NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                   ______________________

                 DOUGLAS SCZYGELSKI,
                      Petitioner,

                              v.

        MERIT SYSTEMS PROTECTION BOARD,
                     Respondent.
                ______________________

                         2014-3007
                   ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE3443080306-I-1.
                ______________________

                   Decided: March 10, 2014
                   ______________________

       DOUGLAS SCZYGELSKI, of Bismarck, North Dakota, pro
se.

   SARA B. REARDEN, 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 LOURIE, O’MALLEY, and CHEN, Circuit Judges.
2                                        SCZYGELSKI   v. MSPB



PER CURIAM.
     Douglas Sczygelski (“Sczygelski”) contests the Merit
Systems Protection Board’s (“Board”) dismissal of his
petition for review as untimely. Sczygelski also asks that
we reverse the Board’s refusal to reopen his appeal. We
find that the Board did not err in finding that Sczygelski
failed to establish good cause for his untimely filing or by
refusing to reopen his appeal. We thus affirm.
                      I. BACKGROUND
    Sczygelski was hired as a Center Adjudications Of-
ficer with the United States Citizenship and Immigration
Services on November 23, 2003. See Sczygelski v. Dept. of
Homeland Security, 2008 MSPB LEXIS 6721, at *1
(M.S.P.B. July 2, 2008). He was hired to a one-year term
appointment with possible extensions of up to four years.
See id. His appointment was extended twice and was set
to expire September 30, 2006. See id. Prior to the expira-
tion of his second term, Sczygelski resigned and accepted
a position as an Agriculture Specialist with the United
States Customs and Border Protection (“CBP”) under the
Federal Career Intern Program (“FCIP”) on September
17, 2006. See id.
    Sczygelski’s position as an Agriculture Specialist was
in the excepted service. See id. Consistent with FCIP
appointment protocol, Sczygelski’s appointment was time-
limited and was not to exceed two years, plus extensions,
unless he was converted to a competitive position at the
end of the two-year trial period. See id. at 3. The FCIP
scheme contemplates that an applicant normally will be
converted to the competitive service after the two-year
trial period. See id. Sczygelski, however, was terminated
on April 8, 2008, prior to the expiration of his two-year
trial period. See id. at 2.
    CBP fired Sczygelski before the end of his two-year
trial period. According to Sczygelski, he was fired because
SCZYGELSKI   v. MSPB                                      3



he sent letters “to people and newspapers” that were
perceived to be disparaging of African-Americans. Re-
spondent’s Appendix (“R.A.”) at 16 (Szcygelski’s Reply to
Agency’s Response). This was consistent with the find-
ings of the CBP’s Office of Internal Affairs investigation
that resulted in Sczygelski’s termination. See R.A. at 97.
That investigation found that Sczygelski used a govern-
ment computer to conduct research to “distribute[] hun-
dreds of unsolicited letters to various university campuses
across the country.” Id.
    CBP found that his behavior was contrary to CBP
Standard of Conduct § 6.11.2. See id. That section states
that, among other things, employees of CBP shall not
evince “hatred or invidious prejudice to or about another
person or group on account of race, color, religion, nation-
al origin, sex, sexual orientation, age or disability.” Id.
(quoting § 6.11.2). CBP determined that Sczygelski’s
public letter writing campaign led to diminished respect
for CBP and interfered with its law enforcement mission.
See id. Several newspaper articles were written about his
mailings, the letters received radio news coverage, and his
co-workers discussed them at work. See id. Given these
circumstances, CBP determined that Sczygelski lacked
“the traits and judgment necessary for satisfactory per-
formance as a career employee and that continuation of
[his] internship was not in the best interest of [CBP].” Id.
    Sczygelski appealed his termination. R.A. at 89–92.
He contested the finding that he violated the CBP Stand-
ard of Conduct because he did not make “invidious or
derogatory” statements about “blacks.” Id. According to
Sczygelski, the Standard of Conduct does not bar deroga-
tory statements about racial groups, it simply forbids
conduct evidencing “hatred” and “invidious prejudice.” Id.
Sczygelski contended that his statements were not in-
tended to demonstrate hatred or invidious prejudice
against anyone. See id.
4                                       SCZYGELSKI   v. MSPB



    The Board acknowledged receipt of Sczygelski’s
appeal. R.A. at 81–88. The Board informed Sczygelski
that, because he was in the excepted service, it may not
have jurisdiction to hear his appeal. See id. at 82. The
Board noted that he “must be: (a) a preference-eligible
employee who has completed one year of current, continu-
ous services in the same or a similar position[], or (b) an
employee who is not serving a probationary or trial period
under an initial appointment pending conversion to the
competitive service or who has completed two years of
current, continuous service in the same or similar posi-
tions under other than a temporary appointment limited
to two years or less.” Id.
    The Department of Homeland Security (“DHS”)
moved to dismiss Sczygelski’s appeal, arguing that the
Board lacked jurisdiction. See R.A. at 69–74. Sczygelski
disagreed and, among other things, argued that the Board
had jurisdiction because he was not serving a probation-
ary or trial period. See id. at 80. The Board agreed with
DHS. Specifically, the Board found that it was undisput-
ed that Sczygelski was serving under the FCIP and that
at the time of his termination he had not been converted
to the competitive service. See Sczygelski, 2008 MSPB
6721, at *4–7 (M.S.P.B. July 2, 2008). The Board found
that he was serving in a trial period as a matter of law.
See id. And, the Board found that FCIP appointments are
excepted service appointments. See id. The Board thus
held that Sczygelski would have appeal rights to the
Board only if he met the definition of “employee” set forth
in 5 U.S.C. §§ 7511(a)(1)(B) or (C). See id. The Board
concluded that the only possible definition of employee
within which Sczygelski may fit would require him to
have completed two years of continuous service in the
same or similar positions as described in 5 U.S.C.
§ 7511(a)(1)(C)(ii). See id. The Board concluded that he
did not fit that definition of employee either and dis-
SCZYGELSKI   v. MSPB                                     5



missed his appeal for a lack of jurisdiction. See id.
Sczygelski did not appeal that decision at that time.
     Sczygelski filed a petition for review of the 2008
decision four years later on October 31, 2012. See R.A. at
45. He also requested that the Board reopen his appeal.
See id. Sczygelski argued that he recently discovered that
CBP used improper procedures or gave him improper
notice when it terminated him. See Sczygelski v. Dept. of
Homeland Security, 119 M.S.P.R. 529 (M.S.P.B. August 5,
2013) (“Final Order”). He also contended that CBP had
made a suitability determination when it fired him. See
id. Based on those reasons, Sczygelski asserted that he
was able to establish good cause for the late filing of his
petition for review or to reopen his appeal. See id. The
Board disagreed and dismissed his appeal as untimely
filed. Sczygelski now appeals that decision.
                       II. DISCUSSION
    Sczygelski contends that he recently discovered 5
C.F.R. § 731.501, which states that when an agency takes
a “suitability action” against a person, that person may
appeal the action to the Board. See 5 C.F.R. § 731.501.
Sczygelski claims the Board would have exercised juris-
diction over this case if he knew about § 731.501 at the
time of his initial appeal and had asserted it. See Infor-
mal Brief of Petitioner at 3. He argues that his failure to
discover that regulation was a direct result of the admin-
istrative judge’s actions. Specifically, he contends that
the administrative judge who heard his appeal stated in
the initial Acknowledgement Order that there were only
two grounds for Board jurisdiction and did not reference
§ 731.501. See id. Sczygelski also contends that his
untimely filing was a result of CBP’s failure to notify him
of his right to appeal under § 731.501 as one such ground.
See id. at 4. In particular, he argues that, when an agen-
cy makes a suitability determination about someone, it is
required by 5 C.F.R. § 731.404 to inform the employee of
6                                         SCZYGELSKI   v. MSPB



his or her right to appeal, which CBP failed to do so in his
case. See id.
    Our review of the Board’s decisions is limited by stat-
ute. See 5 U.S.C. § 7703(c). An appeal to the Board “must
be filed no later than 30 days after the effective date, if
any, of the action being appealed, or 30 days after the
date of the appellant’s receipt of the agency’s decision,
whichever is later.” 5 C.F.R. § 1201.22(b)(1). An untime-
ly appeal will be dismissed “unless good reason for the
delay is shown.” Id. at 1201.22(c). “[W]hether the regula-
tory time limit for an appeal should be waived based upon
a showing of good cause is a matter committed to the
Board’s discretion” which “we will disturb . . . only if it is
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” Mendoza v. Merit Sys.
Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).
The petitioner has the burden to demonstrate excusable
delay. 5 C.F.R. § 1201.56(a)(2)(ii).
    Sczygelski must establish good cause to justify his
delay in filing his petition for review. See Zamot v. Merit
Sys. Prot. Bd., 322 F.3d 1374, 1377 (Fed. Cir. 1994). In
considering whether Sczygelski can demonstrate good
cause, the Board will consider whether circumstances
beyond the petitioner’s control affected his ability to
comply with the filing deadline, whether he was notified
of the filing deadline, and whether he exercised due
diligence in meeting the deadline. See id.; see also Walls
v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir.
1994).
    We find that the Board did not abuse its discretion in
refusing to allow Sczygelski to file his petition for review
four years after the deadline. The Board found that
Sczygelski did not exercise either the due diligence or
ordinary prudence necessary to justify waiving the dead-
line. See Final Order at 529. It is undisputed that
Sczygelski was informed of the filing deadline. The Board
SCZYGELSKI   v. MSPB                                     7



also found that Sczygelski’s recent discovery of §§ 731.404
and 501 did not qualify as new evidence that warranted
good cause to waive the filing deadline. See id. While the
Board will consider the discovery of new evidence in
determining whether to waive a filing deadline, Sczygel-
ski must demonstrate that the evidence was not available
to him before the deadline. See id. The Board correctly
concluded that Sczygelski did not demonstrate that any of
this information, namely the existence of §§ 731.404 and
501, was unavailable to him prior to the close of the
record in his initial appeal. See id.
     The Board also considered the fact that Sczygelski
had proceeded pro se during the pendency of his initial
appeal. While giving that fact some weight, the Board
found that the length of the delay—4 years—coupled with
Sczygelski’s failure to provide a plausible reason why he
failed to discover the regulations demonstrated that he
did not exercise due diligence. In other words, even
assuming that the administrative judge and the CPB gave
him incorrect or misleading information, Sczygelski did
not diligently exercise his individual responsibility to
research any potential grounds to appeal the administra-
tive judge’s initial decision.     Accordingly, given the
Board’s careful consideration of the issues, we find that
the Board’s decision was supported by substantial evi-
dence and was not arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law.
     We also affirm the Board’s refusal to reopen Sczygel-
ski’s appeal. Because he has not met his initial burden
demonstrating good cause for his filing delay, the agency
is not required to establish that it would be prejudiced by
a reopening of his appeal. See Womack v. Merit. Sys. Prot.
Bd., 798 F.2d 453, 456 (Fed. Cir. 1986).
                       III. CONCLUSION
    We hold that the Board did not abuse its discretion by
dismissing Sczygelski’s petition for review as untimely
8                                      SCZYGELSKI   v. MSPB



filed. We also find that the Board did not err in refusing
to reopen Sczygelski’s appeal. We thus affirm the Board’s
judgment.
                      AFFIRMED
