       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 JACK N. NICHOLS,
                     Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2013-3027
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA0831110519-I-1.
                ______________________

                Decided: July 16, 2013
                ______________________

   JACK N. NICHOLS, of Bentley, Louisiana, pro se.

   LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, 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.
               ______________________

    Before PROST, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.
2                                     JACK NICHOLS   v. MSPB

    Jack N. Nichols (“Nichols”) appeals a decision of the
Merit Systems Protection Board (“Board”) dismissing his
appeal. Nichols v. Office of Pers. Mgmt., No. DA-0831-11-
0519-I-1 (MSPB Sept. 6, 2012) (Final Order) (“Final
Order”); Nichols v. Office of Pers. Mgmt., No. DA-0831-11-
0519-I-1 (MSPB Aug. 9, 2011) (Initial Decision) (“Initial
Decision”). Because the Board did not abuse its discretion
or otherwise err in dismissing the case, this court affirms
the decision of the Board.

                      BACKGROUND

    In June of 2011, 1 Nichols appealed to the Board the
decision of the Office of Personnel Management (“OPM”)
“that determined he received an overpayment of his Civil
Service Retirement System . . . disability retirement
annuity in the amount of $10,028.43.” Initial Decision,
slip op. at 1. Nichols also appealed his involuntary re-
tirement, which was separately docketed before the
Board. On June 10, 2011 the administrative judge (“AJ”)
issued an Acknowledgement Order indicating that “unless
[Nichols] amended his appeal to show that OPM had
issued a ‘final decision’, his appeal would be dismissed.”
Initial Decision at 2. Nichols did not respond.

    In its response to the Acknowledgement Order, OPM
reported that it had made an initial decision, that Nichols
subsequently requested reconsideration, and that OPM



    1   There is some disagreement between the Board’s
decisions as to the precise filing date of the appeal.
Compare Initial Decision, slip op. at 1, 3, 5 (indicating
that Nichols filed his appeal on June 3, 2011), with Final
Order, slip op. at 2 (indicating that Nichols filed his
appeal on June 7, 2011). As this small discrepancy does
not affect the outcome of the case, this court does not
address it.
JACK NICHOLS   v. MSPB                                   3

ultimately upheld the initial decision and made it final in
a decision dated February 7, 2011. Based on OPM’s
response, the AJ recognized that a final decision had in
fact been made, but remarked that Nichols did not file his
appeal until 116 days after the date of the final OPM
decision. OPM noted that the final OPM decision provid-
ed Nichols notice of his appeal rights and notice that he
had thirty calendar days after OPM’s decision or Nichols’s
receipt of the decision, whichever was later, to file his
appeal. The AJ then issued an Order to Show Cause
Regarding Timeliness reiterating the time limit for an
appeal, describing when and under what circumstances
the time limit can be waived, and inviting Nichols to show
that his appeal was timely or that there was good cause
for the delay. Nichols did not respond on the timeliness
issue.

    As a result, the AJ dismissed Nichols’s appeal as un-
timely. Nichols filed a petition for review, which the
Board observed did not challenge the findings that the
appeal was untimely and that Nichols did not show good
cause. Instead, the Board noted that the petition for
review argued on the merits that Nichols did not receive
an overpayment because the account to which the pay-
ment was allegedly made was closed. The Board found
that the arguments on the merits were irrelevant to
timeliness. The Board concluded that the Initial Decision
properly dismissed Nichols’s appeal and denied the peti-
tion for review.

                         DISCUSSION

    Nichols once again argues the merits of his case,
asserts that he is paying back money that he never re-
ceived, and seeks the money he asserts he never received.
Nichols also refers to being given different addresses and
being passed to different individuals, the relevance of
which is uncertain. What he does not argue is why the
4                                        JACK NICHOLS   v. MSPB

Board’s decision on his untimely appeal should be over-
turned.

    The government argues that the Board considered all
the relevant facts, applied the correct law, and properly
concluded that Nichols’s appeal was untimely and that he
did not demonstrate good cause for the untimeliness. The
government argues that the final OPM decision provided
notice of the time limit for an appeal, that the Order to
Show Cause Regarding Timeliness provided notice of
what was necessary to show good cause, and that Nichols
did not present evidence to warrant waiver of the time
limit.

     With certain exceptions, “an appeal 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). “If a party does not
submit an appeal within the time set by statute, regula-
tion, or order of a judge, it will be dismissed as untimely
filed unless a good reason for the delay is shown.”
§ 1201.22(c). “The appellant has the burden of proof, by a
preponderance of the evidence, with respect to . . . [t]he
timeliness of the appeal . . . .” 5 C.F.R. § 1201.56(a)(2)(ii).
“We must affirm the Board’s decision to deny a good cause
waiver of the subsection 1201.22(b) filing deadline in this
case unless the decision is ‘(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) unsupport-
ed by substantial evidence.’” Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1581 (Fed. Cir. 1994) (quoting 5 U.S.C.
§ 7703(c)).

    The Board’s decision in this case to dismiss based on
untimeliness of the filing of the appeal is not an abuse of
discretion. Furthermore, this court identifies no proce-
dural defect or lack of substantial evidence to support the
JACK NICHOLS   v. MSPB                                    5

decision. Here, the Board properly found that the delay
was significant, that Nichols was notified of the time limit
for filing, and that Nichols provided neither an explana-
tion for the untimely filing nor a reason to waive the time
limit.

    Nichols’s arguments on the merits do not address the
procedural grounds on which the Board dismissed his
case. Even if we construe Nichols’s other arguments as
now attempting to explain the lateness of his filing, these
arguments come too late and should have been raised
before the Board. See Bosley v. Merit Sys. Prot. Bd., 162
F.3d 665, 668 (Fed. Cir. 1998) (“A party in [a Board]
proceeding must raise an issue before the administrative
judge if the issue is to be preserved for review in this
court. Thus, if the party fails to raise an issue in the
administrative proceeding or raises an issue for the first
time in a petition for review by the full Board, this court
will not consider the issue.”).

    For the foregoing reasons, this court affirms the deci-
sion of the Board.

                         AFFIRMED

                           COSTS

   Each party shall bear its own costs.
