       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                RALPH M. MALONE,
                    Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2015-3197
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0831-94-0834-I-1.
                ______________________

               Decided: January 8, 2016
                ______________________

   RALPH M. MALONE, San Tan Valley, AZ, pro se.

    SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
                 ______________________

Before PROST, Chief Judge, REYNA and WALLACH, Circuit
                       Judges.
PER CURIAM.
2                                           MALONE   v. MSPB



    Ralph M. Malone appeals the final decision of the
Merit Systems Protection Board (“Board”), dismissing his
petition for review as untimely filed. For the reasons
discussed below, we affirm.
                       BACKGROUND
    In July 1978, Mr. Malone, a former employee of the
United States Postal Service, was granted disability
retirement. In August 1981, Mr. Malone became em-
ployed as an annuitant for the Department of Treasury,
Internal Revenue Service. During this time, Mr. Malone
continued to receive his disability annuity. Mr. Malone’s
employment with the Department of Treasury ended in
1984 when his employment was involuntarily terminated.
After his separation from the Department of Treasury,
Mr. Malone began to receive a supplemental annuity
based on his reemployment service.
    Subsequently, the Department of Treasury learned
that it had incorrectly classified Mr. Malone as a full-time
employee rather than an annuitant. On June 26, 1986,
the Department of Treasury submitted a Standard Form
2806-1, Notice of Correction of Individual Retirement
Record to the Office of Personnel Management (“OPM”).
Mr. Malone appealed this action to the Board and argued
that he was a regular employee. Mr. Malone also noted
that his involuntary termination of employment had been
voided as an improper action. In support of this asser-
tion, Mr. Malone enclosed a copy of a Notification of
Personnel Action form dated March 27, 1986, which he
claimed rescinded the prior termination action.
    On October 26, 1994, Mr. Malone entered into a set-
tlement agreement with the OPM. Under the terms of
the settlement, Mr. Malone agreed to dismiss his appeal.
In exchange, the OPM agreed that should Mr. Malone
recover from his disability and become reemployed by the
Federal government, his rate computation would include
MALONE   v. MSPB                                          3



credit for his prior service, including his reemployment
between 1981 and 1984.
     After reaching the age of sixty, Mr. Malone submitted
“an application for Immediate Retirement benefits.”
Pet’r’s Informal Reply Br. 3. According to Mr. Malone,
from 1978 until 2008, when he turned sixty, he was an
employee of the Federal government receiving disability
benefits and thus eligible for additional retirement bene-
fits. The OPM construed Mr. Malone’s application as one
for a “re-determined annuity” and found that he was not
eligible. Resp’t’s App. 7. The OPM based its finding
partly on the fact that Mr. Malone was not employed by
the Federal government after 1984. Mr. Malone timely
appealed the OPM’s determination to the Board.
    Mr. Malone’s appeal partly relied on a claim that the
OPM procured the 1994 settlement agreement through
fraud. According to Mr. Malone, his 1984 termination
was rescinded in 1986 by operation of the Notification of
Personnel Action form. However, Mr. Malone asserted
that he was not aware of the form and only learned of its
existence in 2011. According to Mr. Malone, had he
known of the form, it would have impacted his decision on
whether to enter into the settlement agreement.
    In addressing Mr. Malone’s appeal, the administrative
judge determined that he did not have jurisdiction to
determine the validity of the 1994 settlement agreement.
The judge presented Mr. Malone with a choice: he could
have his appeal dismissed without prejudice and request
that the full Board review the settlement agreement, or
he could continue the appeal under the assumption that
the 1994 agreement was valid. Mr. Malone opted to
dismiss his appeal without prejudice and file a petition for
review.
     On February 4, 2015, Mr. Malone submitted a petition
for review of the 1994 settlement agreement and a motion
to accept the filing as timely. In his petition, he again
4                                          MALONE   v. MSPB



asserted that the OPM had concealed the 1986 Notifica-
tion of Personnel Action form and he only became aware
of it when he obtained a complete copy of his Disability
Retirement File in 2011. Mr. Malone also noted that in
April 2013, he filed a civil suit to obtain a copy of his
Official Personnel Folder and that he was still waiting for
the file.
     In an initial decision, the Board found that Mr.
Malone’s petition for review of the 1994 settlement was
untimely filed without good cause shown. Mr. Malone
subsequently filed a petition for review of the initial
decision. After additional briefing, the Board affirmed the
initial decision and again found that the petition for
review of the 1994 settlement was untimely and that Mr.
Malone had not provided good cause for the delay. This
appeal followed.
                       DISCUSSION
     Our review of the Board’s decision is limited by stat-
ute. We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
    The sole issue before us in this appeal is whether the
Board appropriately dismissed Mr. Malone’s petition for
review of the 1994 settlement agreement as untimely. A
petition for review must be filed “within 35 days after the
date of issuance of the initial decision . . . .” 5 C.F.R.
§ 1201.114(e). The Board may waive the thirty-five day
deadline “only if the party submitting the motion shows
good cause.” 5 C.F.R. § 1201.114(f). “The decision to
waive the time limit to appeal to the Board is committed
to the discretion of the Board, and is reversed only for
abuse of that discretion.” Herring v. Merit Sys. Prot. Bd.,
778 F.3d 1011, 1013 (Fed. Cir. 2015).
MALONE   v. MSPB                                          5



    As an initial matter, we conclude that the Board did
not fail to apply the proper law. To determine whether to
grant a motion to accept a filing as timely, there are no
specific criteria that the Board must use. Walls v. Merit
Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). How-
ever, the Board has identified a list of factors that should
be considered in determining whether good cause has
been shown:
   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.
Id. (quoting Alonzo v. Dep’t of the Air Force, 4 M.S.P.B.
262, 264 (1980)). In addition, the Board should take a
petitioner’s pro se status into consideration. See id. at
1583.
    In determining whether Mr. Malone had shown good
cause, the Board considered the length of the delay, the
reason for the delay and whether Mr. Malone had shown
due diligence, Mr. Malone’s pro se status, and the exist-
ence of circumstances beyond his control that affected his
ability to comply with the time limits. The factors consid-
ered by the Board in Mr. Malone’s case mirror the factors
applied by the Board in similar cases. Consequently, the
Board did not fail to apply the proper law and acted in
accordance with the law.
    Because the Board applied the proper law to Mr.
Malone’s motion, we will not disturb the Board’s determi-
nation if it is supported by substantial evidence. We
6                                          MALONE   v. MSPB



conclude that the Board’s determination that Mr.
Malone’s petition for review of the 1994 settlement
agreement was untimely is supported by substantial
evidence.
    Mr. Malone contends it was not possible for him to
challenge the validity of the settlement agreement until
he learned of the 1986 Notification of Personnel Action
form. He claims that he was unaware of the 1986 form
until 2011. However, Mr. Malone provided a copy of the
form as part of his submission to the Board when he
challenged the Department of Treasury’s 1986 correction
to his retirement record. It was Mr. Malone’s appeal of
that correction which led to the 1994 settlement agree-
ment that Mr. Malone now seeks to challenge. Thus, the
Board had evidence that Mr. Malone was in possession of
the 1986 Notification of Personnel Action form before he
entered into the 1994 settlement agreement. Based on
this evidence, the Board could reasonably infer that Mr.
Malone was aware of the 1986 form before 2011 and was
able to pursue his claim at any time during the more than
twenty years between the 1994 settlement agreement and
his 2015 filing of the petition for review of that settle-
ment. Consequently, the Board’s determination that Mr.
Malone failed to show good cause for the delay was sup-
ported by substantial evidence.
                      CONCLUSION
    For the foregoing reasons, we affirm the Board’s deci-
sion and deny Mr. Malone’s request for remedies. We
note that our opinion only concerns the single question of
whether Mr. Malone’s petition to review the 1994 settle-
ment agreement was timely filed. As Mr. Malone’s appeal
regarding his re-annuity determination was dismissed
without prejudice, he is free to continue that appeal,
assuming he has complied with any conditions set forth
by the administrative judge.
MALONE   v. MSPB                            7



                     AFFIRMED
                         COSTS
   Each party shall bear their own costs.
