       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                KENNETH L. GRAY,
                    Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2016-1223
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE-0752-14-0450-I-1.
                ______________________

                 Decided: July 8, 2016
                ______________________

   KENNETH L. GRAY, Sandy, UT, pro se.

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

  Before MOORE, LINN, and O’MALLEY, Circuit Judges.
PER CURIAM.
2                                             GRAY   v. MSPB



    Kenneth L. Gray appeals from a Merit Systems Pro-
tection Board (“Board”) decision dismissing his appeal as
barred by the doctrine of laches. We affirm.
                      BACKGROUND
    Dr. Gray began working for the Department of the In-
terior (“agency”) as a Sociologist on March 7, 1974 pursu-
ant to a temporary appointment, not to exceed July 7,
1974. On July 3, 1974, his temporary appointment ex-
pired. After a three-day break in service, Dr. Gray was
placed on a career-conditional competitive service ap-
pointment to the position of Sociologist. He later resigned
on May 30, 1975.
    The agency utilizes Standard Form 50 (SF-50) to rec-
ord personnel actions. An SF-50 dated July 5, 1974
(“First SF-50”) states Dr. Gray was subject to a one-year
probationary period beginning on March 7, 1974. Over
six months later, on January 22, 1975, a second SF-50
issued as a “correction” (“Corrected SF-50”), delaying the
start of Dr. Gray’s probationary period to July 7, 1974.
Dr. Gray’s May 30, 1975 resignation is recorded in a third
SF-50 (“Resignation SF-50”), indicating he resigned
“during probation” and because of “policy disagreements.”
    In 2014, Dr. Gray requested documentation of his em-
ployment with the agency, which Dr. Gray’s current
employer had asked him to obtain. With this request,
Dr. Gray received a portion of his personnel record con-
taining the three above-discussed SF-50s. He subse-
quently filed his initial appeal regarding his May 30, 1975
resignation. He alleged that in 1975, his supervisor
forced him to resign or face termination. He further
alleged that his supervisor falsified the Corrected SF-50
and Resignation SF-50 to reflect that he resigned before
completing his probationary period, and falsely informed
him that he had no appeal rights. He argued that the
agency failed to notify him of his right of appeal.
GRAY   v. MSPB                                           3



     In its Initial Decision, the Board held that it lacked
jurisdiction because Dr. Gray was not a “covered employ-
ee” with appeal rights. The 1975 version of 5 C.F.R.
§ 752.201 provides appeal rights only to employees who
(1) are not serving a probationary period; and (2) have
completed one year of current continuous employment.
The Board held that Dr. Gray was not a “covered employ-
ee” because as of his resignation on May 30, 1975, he was
still serving a one-year probationary period and had not
completed one year of current continuous employment due
to his three-day break in service.
    Dr. Gray petitioned for review, and the Board vacated
its Initial Decision. The Board held that Dr. Gray com-
pleted his probationary period on March 6, 1975, con-
sistent with the First SF-50, as opposed to the Corrected
SF-50, and therefore was a “covered employee” with
appeal rights. In particular, the Board determined that
under the regulations in place in 1975, Dr. Gray’s service
under his temporary appointment—rendered immediately
prior to his career-conditional appointment, in the same
line of work, for the same agency, and with only one break
of service occurring less than 30 days—could count toward
his completion of his probationary period. But the Board
held that Dr. Gray’s appeal was barred by the doctrine of
laches. It held that the agency was not obligated to
inform Dr. Gray of his right to appeal, and found that
Dr. Gray’s 40-year delay was unreasonable and inexcusa-
ble. It also found that the agency was overwhelmingly
prejudiced by Dr. Gray’s delay and could not defend itself
against Dr. Gray’s claim. Dr. Gray appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    Our review of the Board’s decision is limited by stat-
ute. We affirm a final decision of the Board unless it is
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
4                                             GRAY   v. MSPB



required by law, rule or regulation having been followed;
or unsupported by substantial evidence.        5 U.S.C.
§ 7703(c). We review the Board’s application of the doc-
trine of laches for an abuse of discretion. See Nuss v.
Office of Personnel Mgmt., 974 F.2d 1316, 1318 (Fed. Cir.
1992).
     To invoke the affirmative defense of laches, the agen-
cy bears the burden of proving two factors: (1) Dr. Gray’s
40-year delay was unreasonable and inexcusable; and
(2) Dr. Gray’s delay materially prejudiced the agency. Id.
“Prejudice may not be presumed from the length of a
claimant’s delay.” Cornetta v. United States, 851 F.2d
1372, 1380 (Fed. Cir. 1988). The agency can show mate-
rial prejudice stemming from Dr. Gray’s delay through
either economic or defense prejudice. Id. at 1378. Here,
the agency relies on defense prejudice. The agency as-
serts that it is unable to mount a defense due to the
unavailability and faded memories of witnesses and the
potential loss of relevant documents, such as notes writ-
ten by Dr. Gray’s former supervisor or personnel special-
ists.
    We conclude that the Board did not abuse its discre-
tion in holding that Dr. Gray’s claim was barred by lach-
es. The Board determined that Dr. Gray’s 40-year delay
was unreasonable and inexcusable, finding that Dr. Gray
could have requested his complete personnel file at any
time over the past 40 years. The Board also determined
that the agency was materially prejudiced by Dr. Gray’s
delay, finding that the agency is unable to defend itself
against Dr. Gray’s claim due to the unavailability of
witnesses and loss of relevant documents. Under the
deference owed to the Board, the laches bar in this case
must stand. We cannot say that the Board abused its
discretion in light of Dr. Gray’s 40-year delay.
GRAY   v. MSPB                                            5



                       CONCLUSION
     For the foregoing reasons, the decision of the Board is
affirmed.
                          COSTS
    No costs.
