       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

           SYLVESTER E. HARDING, III,
                   Petitioner,

                           v.
     DEPARTMENT OF VETERANS AFFAIRS,
               Respondent.
              __________________________

                      2011-3091
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DA0752100064-I-1.
               __________________________

              Decided: December 13, 2011
              __________________________

    SYLVESTER E. HARDING, III, of Lumberton, North Caro-
lina, pro se.

    RENEE GERBER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Attorney General, JEANNE E.
DAVIDSON, Director, and REGINALD T. BLADES, JR., Assis-
tant Director.
HARDING   v. VA                                          2


                  __________________________

    Before LINN, PROST, and MOORE, Circuit Judges.
PER CURIAM.

    Sylvester E. Harding, III seeks review of a decision of
the Merit Systems Protection Board (“Board”) that upheld
his indefinite suspension and found that the agency
complied with its interim relief obligations. This court
affirms.

                        BACKGROUND

     Mr. Harding worked as a housekeeping aid at the Fa-
yetteville Veterans Affairs (“VA”) Medical Center in North
Carolina. In 2008, Mr. Harding was arrested and charged
with “possession with intent to manufacture, sell or
deliver a controlled substance (cocaine), keeping and
maintaining a vehicle that was used for keeping and
selling a controlled substance (cocaine), and driving a
motor vehicle with a driver’s license that was revoked and
suspended,” and in June 2009, he was indicted on all four
charges. On September 8, 2009, the VA notified Mr.
Harding that it was considering indefinitely suspending
him pending the investigation into his criminal conduct
because the indictments provided reasonable cause to
believe that Mr. Harding might be guilty of a crime for
which a sentence of imprisonment may be imposed. On
September 25, 2009, the agency issued a letter indefi-
nitely suspending Mr. Harding, effective September 28,
2009.

    Mr. Harding appealed to the Board. The administra-
tive judge reversed Mr. Harding’s indefinite suspension
because it lacked an “ascertainable end” and therefore
could not be sustained. The administrative judge ordered,
3                                              HARDING   v. VA


inter alia, that the agency provide interim relief, effective
from the date of the decision, if a petition for review was
filed by either party.

    On January 20, 2010, the agency filed a petition for
review. Pursuant to 5 C.F.R. § 1201.114(d), Mr. Hard-
ing’s response was due on or before February 16, 2010.
On February 25, 2010, Mr. Harding filed a motion to
dismiss the agency’s petition because the agency failed to
provide interim relief. He subsequently filed pleadings on
May 5, 2010, July 27, 2010, August 5, 2010, August 12,
2010, September 17, 2010, and September 22, 2010. On
May 5, 2010, he also submitted the transcript of a March
8, 2010, statement given by his supervisor in connection
to an equal employment opportunity proceeding. The
Board refused to consider any of these filings because
they were filed after the close of the record for review.

    On December 9, 2010, the Board issued its final deci-
sion, reversing the administrative judge and sustaining
the indefinite suspension. The Board found that the
ascertainable end to Mr. Harding’s indefinite suspension
existed; it was “the resolution of the criminal proceedings
that are the grounds for the suspension.” The Board also
found that Mr. Harding’s indefinite suspension met all
the statutory and regulatory requirements for it to be
valid and was a reasonable penalty in light of Mr. Hard-
ing’s indictments. As to the interim relief mandated by
order, the Board held that the agency’s certification and
SF-50 form, which indicated that Mr. Harding was re-
turned to pay status, were sufficient to show that the
agency had met its interim relief obligations.

    On May 31, 2011, Mr. Harding filed this petition for
review of the Board’s final decision in this court. On
November 28, 2011, Mr. Harding supplemented his brief.
HARDING   v. VA                                           4


                       DISCUSSION

     The scope of our review in an appeal from a Board de-
cision is limited by statute. We must affirm the Board’s
decision unless it was: “(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); see Bennett v.
Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011).

    We find no error in the Board’s holding that Mr.
Harding’s indefinite suspension is valid. The Board
acknowledged that for an indefinite suspension to be
valid, it must have an ascertainable end. While the better
practice would be for the agency to explicitly identify the
condition subsequent, what is necessary for a valid in-
definite suspension is only that such a condition exists.
In Mr. Harding’s case, the Board acted within its discre-
tion in holding that the ascertainable end to the indefinite
suspension was “the resolution of the criminal proceed-
ings that are the grounds for the suspension.”

    The Board also correctly found that the indefinite
suspension otherwise satisfied the requirements of 5
U.S.C. § 7513. Indefinite suspensions lasting more than
fourteen days must comply with the procedural protec-
tions of 5 U.S.C. § 7513(b), including providing the em-
ployee “at least 30 days’ advance written notice, unless
there is reasonable cause to believe the employee has
committed a crime for which a sentence of imprisonment
may be imposed.” 5 U.S.C. § 7513(b)(1). Although Mr.
Harding only had twenty days’ advance notice, the Board
correctly found that his indictments on multiple felony
charges warranted the shorter notice period because the
felony charges carried possible sentences of imprison-
5                                              HARDING   v. VA


ment. Cf. Dunnington v. Dep’t of Justice, 956 F.2d 1151,
1156-57 (Fed. Cir. 1992) (finding criminal indictment
sufficient to meet requirements of reasonable cause to
suspend with less than thirty days’ notice). Pursuant to
§ 7513(a), an indefinite suspension action must be taken
“only for such cause as will promote the efficiency of the
service.” To show that a suspension promotes the effi-
ciency of the service, there must be a nexus between the
employee’s acts of misconduct and the efficiency of ser-
vice. See Dunnington, 956 F.2d at 1155. The Board found
that the requisite nexus exists because his misconduct led
his supervisors to lose confidence in his ability to perform
his duties and the suspension prevented him from access-
ing veterans’ sensitive personal information. Because the
Board acted within its discretion in finding that Mr.
Harding’s indefinite suspension satisfied the protections
of § 7513, we uphold the indefinite suspension as valid.

    On appeal, Mr. Harding also challenges the Board’s
refusal to admit his late filings, focusing particular atten-
tion on his motion to dismiss for failure to provide interim
relief. Mr. Harding filed his motion to dismiss the
agency’s petition for review on February 25, 2010, nine
days after the record of review closed. Pursuant to 5
C.F.R. § 1201.116(b), an appellant may request dismissal
of an agency’s petition if the agency has failed to provide
required interim relief. But, “[i]f the appellant files a
motion to dismiss beyond the time limit, the Board will
dismiss the motion as untimely unless the appellant
shows that it is based on information not readily available
before the close of the time limit.” Id. The Board cor-
rectly excluded Mr. Harding’s motion because he failed to
show that his late motion was based on information not
available prior to February 16, 2010. See Frias v. U.S.
Postal Serv., No. 93-3472, 1993 WL 456413, at *1 (Fed.
Cir. Nov. 9, 1993). In fact, nothing in the record indicates
HARDING   v. VA                                             6


that Mr. Harding provided any explanation for the late
motion.

    Yet, even without a timely challenge to the agency’s
interim relief, the Board remains obligated to ensure that
the agency has complied with the interim relief order
either by providing the required relief or satisfying the
exceptions to such relief.     5 C.F.R. § 1201.115(b)(1).
Accompanying its petition for review, the agency submit-
ted a certification and a SF-50 indicating that Mr. Hard-
ing was returned to pay status, effective December 16,
2009. The Board, within its discretion, relied on these
submissions to confirm that interim relief was provided to
Mr. Harding.

     The Board also excluded Mr. Harding’s response to
the petition and other filings, the earliest of which was
filed over two months late. If a response is filed late, it is
the appellant’s obligation to file a motion to show good
cause, accompanied with an affidavit or sworn statement
explaining the reasons for the untimely filing. 5 C.F.R.
§ 1201.114(f). None of Mr. Harding’s filings were accom-
panied by a motion, affidavit, or sworn statement explain-
ing why they were late. In such instances, it is squarely
within the Board’s discretion to determine, based on the
existing record, whether there was good cause for the late
filing. Id. Because nothing on the record provides a
rationale for the late filing, we find that the Board did not
abuse its discretion in excluding the untimely response
and other filings.

    Lastly, the Board excluded the testimony transcript of
Mr. Harding’s supervisor, which was filed over two
months late. Although the document itself was not avail-
able until March 2010, the evidence contained therein—
the supervisor’s recollection of events in 2008 and 2009—
7                                           HARDING   v. VA


was available before the record of review closed. See
Frias, 1993 WL 456413, at *1. Because Mr. Harding
made no showing that the evidence contained in the
transcript was new or otherwise not readily available, the
Board did not abuse its discretion in excluding it.

                       CONCLUSION

    Mr. Harding does not present any grounds on which
this court may upset the final decision of the Board under
the standard of review applicable in this case. Accord-
ingly, based upon the foregoing facts and law, the Board’s
decision is affirmed.

                          COSTS

    Each party shall bear its own costs.

                       AFFIRMED
