                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2008-3215

                               ABDEL A. INNOCENT,

                                                            Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.

      Abdel A. Innocent, of Spring Valley, New Jersey, pro se.

      Michael A. Carney, General 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 Stephanie M. Conley, Acting Assistant
General Counsel. Of counsel was Joseph A. Pixley, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of Washington, DC,

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                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2008-3215

                                  ABDEL A. INNOCENT,

                                                         Petitioner,

                                              v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                         Respondent.


Petition for review of the Merit Systems Protection Board in NY0731070274-I-1.

                             __________________________

                               DECIDED: October 8, 2008
                             __________________________

Before BRYSON, LINN, and PROST, Circuit Judges.

PER CURIAM.

        Petitioner Abdel A. Innocent (“Innocent”) petitions for review of a final decision of

the Merit Systems Protection Board (“Board”) dismissing his petition for review as

untimely. Innocent v. Office of Pers. Mgmt., NY-0731-07-0274-I-1 (M.S.P.B. Mar. 28,

2008) (“Final Decision”).    Because Innocent has failed to identify any basis for us

overturn the Board’s decision, we affirm.

        Innocent was a custodial worker with the U.S. Army Garrison in West Point, New

York.    He was terminated on November 16, 2006, after the Office of Personnel

Management discovered that he had made intentional false statements concerning his

criminal history. Specifically, Innocent answered “no” to an employment application
question asking whether he had been convicted, imprisoned, on probation, or on parole

during the preceding ten years. In fact, he had been convicted twice, put on probation

once, and incarcerated twice during that period.

       Innocent appealed his termination to the Board on June 22, 2007, and the Board

dismissed his appeal as untimely in an initial decision dated September 27, 2007.

Innocent v. Office of Pers. Mgmt., NY-0731-07-0274-I-1 (M.S.P.B. Sept. 27, 2007).

Innocent filed a petition for further review on November 24, 2007—fifty-eight days after

the initial decision. The Board dismissed the petition for further review as untimely,

because it was filed more than thirty-five days after the initial decision issued, with no

showing of good cause for the delay. Final Decision at 1. Innocent petitions for review.

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

       “Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence.” Abell v. Dep’t of Navy, 343 F.3d 1378, 1382-83

(Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).      “The petitioner bears the burden of

establishing error in the Board’s decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d

1463, 1467 (Fed. Cir. 1998).

       Pursuant to 5 C.F.R. § 1201.114(d), “[a]ny petition for review must be filed within

35 days after the date of issuance of the initial decision [unless] the petitioner shows

that the initial decision was received more than 5 days after the date of issuance.”

Innocent does not dispute that he filed the petition for review later than thirty-five days




2008-3215                                   2
after the Board issued its initial decision, and he has not argued that he received the

decision more than five days after it issued. His petition is therefore untimely under 5

C.F.R. § 1201.114(d).

       The Board has the authority to waive the filing deadline for a petition for review

on a showing of good cause for the untimely filing. Id. § 1201.114(f). “The [B]oard has

held that to establish good cause, the [petitioner must show] 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).

“[W]hether 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. Prot.

Bd., 966 F.2d 650, 653 (Fed. Cir. 1992).

       Innocent argued to the Board that his failure to file a timely petition should be

excused because he was confused about the filing deadline and because he was

unable to obtain counsel. The Board rejected both arguments, reasoning that the initial

decision clearly informed Innocent of the deadline for filing a petition for review, and that

Innocent’s inability to obtain counsel could not excuse his untimely filing. Final Decision

at 4-5. The Board therefore concluded that Innocent had failed to show good cause for

his untimely petition. Id. at 5. Innocent has not identified any reason for us to disturb

the Board’s judgment.

       Because the remainder of Innocent’s arguments on appeal concern the merits of

his underlying claim—which are not before us—rather than the Board’s determination




2008-3215                                    3
that his petition for review was untimely, we need not and do not address those

arguments. We affirm the decision of the Board.




2008-3215                                 4
