       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

              FREDERICK GOODMAN,
                   Petitioner,

                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3121
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. CH844E080713-I-2.
               __________________________

              Decided: October 12, 2010
              __________________________

   FREDERICK GOODMAN, of St. Louis, Missouri, pro se.

   STEPHANIE M. CONLEY, 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.
              __________________________
GOODMAN    v. MSPB                                                2




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

    Petitioner Frederick Goodman petitions for review of
the final decision of the Merit Systems Protection Board
(“Board”), which dismissed his refiled appeal as untimely
without good cause for the delay. Because the Board did
not abuse its discretion or otherwise commit legal error,
we affirm.

                          BACKGROUND

     The relevant facts are not in dispute. On August 13,
2008, Mr. Goodman appealed the Office of Personnel
Management (“OPM”) reconsideration decision denying
his application for disability retirement under the Federal
Employees’ Retirement System (“FERS”). On November
5, 2008, Mr. Goodman, through his counsel, filed a motion
to dismiss his appeal without prejudice to his right to
refile an appeal within ninety days of the dismissal to
“explor[e] the possibility of applying for regular retire-
ment.” Resp’t App. 15. On November 6, 2008, by way of
an initial decision, an administrative judge dismissed Mr.
Goodman’s appeal without prejudice to his right to refile
the appeal no later than ninety calendar days from the
date the initial decision becomes a final decision of the
Board. G o o d m a n v . O f f i c e o f P e r s . M g m t . , N o .
CH844E080713-I-1, at 2 (M.S.P.B. Nov. 6,
2 0 0 8 ) . This administrative judge underlined the por-
tion that stated if Mr. Goodman fails to timely refile his
appeal, he waives his right to appeal OPM’s reconsidera-
tion decision unless he demonstrates good cause for any
filing delay. Id. at 2-3. Discussing Mr. Goodman’s appeal
rights and responsibilities, the decision said that the
initial decision would become the final decision of the
3                                         GOODMAN   v. MSPB


Board on December 11, 2008 unless Mr. Goodman peti-
tioned for review of the decision by that date or the Board
reopened the case on its own motion. Id. at 3. Mr. Good-
man and his counsel were then served with a copy of that
initial decision.

     Thereafter, on June 24, 2009, Mr. Goodman filed a pe-
tition for review with the Clerk of the Board. The Clerk
informed Mr. Goodman that his petition for review was
untimely and requested the reason for delay. Mr. Good-
man asked the Board to waive the deadline because “the
documents do not show when the final appeal occurs” and
he did not know when to appeal the final decision. Resp’t
App. 23. On October 1, 2009, the Board issued an opin-
ion, finding that the initial decision clearly notified Mr.
Goodman of the time for filing a petition for review and
dismissed the petition as untimely filed without a show-
ing of good cause for the six month delay. Goodman v.
Office of Pers. Mgmt., 112 M.S.P.R. 414, 416-17 (2008).
The Board also explained that Mr. Goodman appeared to
be attempting to refile his appeal and thus forwarded the
petition to the regional office for re-docketing with in-
structions to provide Mr. Goodman with an opportunity to
show good cause for his delay. Id. at 417.

    On October 22, 2009, a second administrative judge
issued an Order to Show Cause, directing Mr. Goodman to
provide evidence demonstrating a good reason for the
delay and explaining what information Mr. Goodman
needed to submit if the delay resulted from illness or
disability.   Goodman v. Office of Pers. Mgmt., No.
CH844E080713-I-2 (M.S.P.B. Oct. 22, 2000) (“Order to
Show Cause”). In response, Mr. Goodman said he spoke
to his counsel a couple of months after the Board decision.
Resp’t App. 39. According to Mr. Goodman, his counsel
said he could appeal again without explaining how or
GOODMAN   v. MSPB                                        4


when, and also told him that he would no longer repre-
sent him. Id. Mr. Goodman then called the agency
representative from his first appeal for the paperwork on
the Board decision and she sent him a copy of the first
administrative judge’s decision on May 11, 2009. Id.
Finally, Mr. Goodman indicated that he was waiting for a
new initial decision providing him sixty days to appeal.
Resp’t App. 40.

     On November 16, 2009, in an initial decision, the sec-
ond administrative judge dismissed Mr. Goodman’s
refiled appeal as untimely without good cause shown.
Goodman v. Office of Pers. Mgmt., No. CH844E080713-I-
2, at 3 (M.S.P.B. Nov. 16, 2009). He explained that Mr.
Goodman and his counsel were served with a copy of the
first administrative judge’s November 6, 2008 decision,
and Mr. Goodman admitted receiving another copy of that
decision in May 2009. Id. at 2. Mr. Goodman, however,
did not refile his appeal until June 24, 2009 and thus the
second administrative judge determined that Mr. Good-
man’s refiled appeal was untimely. Id. at 2-3. After
considering Mr. Goodman’s proffered excuses, the second
administrative judge determined that Mr. Goodman did
not show good cause for the delay and dismissed his
refiled appeal. Id. at 3.

    Mr. Goodman petitioned for review by the full Board,
but did not address the issue of timeliness. Resp’t App.
41-45. After the full Board denied Mr. Goodman’s peti-
tion for review on April 28, 2010, the initial decision by
the second administrative judge became the final decision
of the Board. Goodman v. Office of Pers. Mgmt., No.
CH844E080713-I-2 (M.S.P.B. Apr. 28, 2010). Mr. Good-
man timely appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
5                                         GOODMAN   v. MSPB


                       DISCUSSION

     On appeal, Mr. Goodman appears to concede that he
did not timely refile his appeal. Thus, the issue before us
is limited to whether the Board erred in finding that Mr.
Goodman lacked good cause for the delay in filing. Mr.
Goodman argues that the overwhelming evidence in the
record shows that he has been disabled, in that he cannot
sit, walk, or stand, since he left his government position
on January 1, 2008. He asserts this evidence sufficiently
waives his untimeliness in refiling his appeal.

    We may set aside a decision of the Board only when it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the 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)(1)-(3). If a party does not
submit an appeal within the time set by statute, regula-
tion, or order of a judge, it must be dismissed as untimely
unless the party can show the judge good reason for the
delay. See 5 C.F.R. § 1201.22(c). “Whether 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) (en
banc).

    To establish good cause for delay, the Board has held
the petitioner must show it exercised diligence or ordi-
nary prudence. Phillips v. U.S. Postal Serv., 695 F.2d
1389, 1391 (Fed. Cir. 1982). Factors the Board considers
when determining whether good cause is shown include:
GOODMAN   v. MSPB                                        6


   the length of the delay; whether appellant was no-
   tified of the time limit or was otherwise aware of
   it; the existence of circumstances beyond the con-
   trol of the appellant which affected his ability to
   comply with the time limits; the degree to which
   negligence by the appellant has been shown to be
   present or absent; circumstances which show that
   any neglect involved is excusable neglect; a show-
   ing of unavoidable casualty or misfortune; and the
   extent and nature of the prejudice to the agency
   which would result from waiver of the time limit.

Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.
Cir. 1994) (quoting Alonzo v. Dep’t of the Air Force, 4
M.S.P.R. 180, 184 (1980)). Where a refiled appeal is
untimely, the Board also may consider the brevity of the
delay, petitioner’s confusion or mistake, the arbitrariness
of the refiling deadline, and the lack of prejudice to the
agency. See Jackson v. Office of Pers. Mgmt., 89 M.S.P.R.
302, 304 (2001).

     Substantial evidence in the record supports the
Board’s finding that Mr. Goodman failed to show good
cause for the untimeliness in refiling his appeal. The
Board did not abuse its discretion in finding lack of good
cause to the extent that Mr. Goodman blames his counsel
for his late filing. Mr. Goodman does not dispute that he
originally received a copy of the first administrative
judge’s November 6, 2008 decision, which explained the
deadlines for petitioning for review of that decision and
refiling his appeal. When Mr. Goodman spoke to his
counsel a couple of months after that date, he learned his
counsel would no longer be working on his case and he
therefore was responsible for refiling the appeal. Even
after Mr. Goodman received another copy of the first
administrative judge’s decision on May 11, 2009, he
7                                         GOODMAN   v. MSPB


waited until June 24, 2009 to refile his appeal. The
record therefore supports the Board’s determination that
Mr. Goodman did not act with due diligence or ordinary
prudence under these circumstances.

    Further, the Board did not abuse its decision in find-
ing Mr. Goodman’s confusion failed to satisfy good cause.
The Board’s decision granting Mr. Goodman’s motion to
dismiss without prejudice emphasized that Mr. Good-
man’s failure to timely refile his appeal within ninety
days from date of the Board’s final decision, on December
11, 2008, would result in the waiver of his right to appeal
OPM’s reconsideration decision. Goodman v. Office of
Pers. Mgmt., No. CH844E080713-I-1, at 2-3 (M.S.P.B.
Nov. 6, 2008). Therefore, absent good cause, Mr. Good-
man had until March 11, 2009 to refile his appeal. Mr.
Goodman did not refile his appeal until June 24, 2009,
more than three months past the ninety day deadline he
selected. Mr. Goodman fails to explain why he believed
that there would be a new initial decision issued provid-
ing him sixty days to appeal. Resp’t App. 40. The only
sixty day reference in the first administrative judge’s
decision was the time Mr. Goodman had to petition the
Board’s final decision to this court. However, Mr. Good-
man’s right to petition for review is different from his
right to refile his appeal.

    Finally, the Order to Show Cause informed Mr.
Goodman that if his untimely filing resulted from illness,
he needed to: “(1) identify the time period during which
the illness was suffered; (2) submit medical evidence
showing he suffered from the illness during that time
period; and (3) explain how the illness prevented him
from timely filing the appeal or requesting an extension of
time.” Order to Show Cause at 1-2. Mr. Goodman’s
response, however, did not address his disability or ex-
GOODMAN   v. MSPB                                       8


plain how it prevented him from timely refiling his ap-
peal. Resp’t App. 37-38. Mr. Goodman’s petition for
review of this second initial decision to the full Board
failed to address the timeliness issue altogether. Accord-
ingly, the Board did not abuse its discretion in finding
that Mr. Goodman failed to show good cause based on
illness for his untimeliness.

    Because the Board’s decision to dismiss Mr. Good-
man’s refiled appeal as untimely without good cause
shown was not arbitrary, capricious, or an abuse of dis-
cretion, but rather is supported by substantial evidence,
we affirm. 1

                         COSTS

   Each party shall bear its own costs.

                      AFFIRMED




   1    Because we affirm the Board’s dismissal of his re-
filed appeal as untimely without good cause, we do not
reach Mr. Goodman’s arguments directed toward the
merits of his application for disability retirement.
