         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

               NATHANIEL K. FRANKLIN,
                     Petitioner,

                             v.
       MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
                __________________________

                        2012-3015
                __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF0432110103-I-1.
               __________________________

                   Decided: May 14, 2012
                __________________________

      NATHANIEL K. FRANKLIN, of Inglewood, California, pro
se.

   SARA B. REARDEN, 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.
              __________________________
FRANKLIN   v. MSPB                                        2


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


    Nathaniel K. Franklin seeks review of the final deci-
sion of the Merit Systems Protection Board (“Board”)
dismissing as untimely his appeal from the Department of
Veterans Affairs (“VA”) Office of Resolution Management
finding that his termination was not the result of dis-
crimination. Franklin v. Dep’t of Veterans Affairs, No.
SF0432110103-I-1 (M.S.P.B. Aug. 19, 2011). Because the
Board did not abuse its discretion, we affirm.

                       BACKGROUND

    Mr. Franklin was employed as Program Support As-
sistant for the Department of Veterans Affairs Los Ange-
les Medical Center. He was removed effective September
30, 2009 due to unacceptable performance. On October
23, 2009, Mr. Franklin filed an equal employment oppor-
tunity (“EEO”) complaint with the VA’s Office of Resolu-
tion Management, which accepted the complaint for
investigation. On October 26, 2009, Mr. Franklin filed a
petition to the Board seeking review of the agency’s
decision to remove him, which was dismissed as prema-
turely filed because Mr. Franklin was still pursing his
EEO complaint.

     On August 5, 2010, the VA issued a Final Agency De-
cision (“FAD”) holding that Mr. Franklin had failed to
prove that he was discriminated against. The FAD in-
cluded language advising him that he had a right to
appeal to the Board within thirty days of his receipt of the
FAD. Mr. Franklin represents that he received the FAD
on or about August 6, 2010, and his lawyer received a
copy of the FAD after September 15, 2010. From August
3                                          FRANKLIN   v. MSPB


23, 2010 until September 15, 2010, his lawyer had served
jury duty.

     On November 3, 2010, Mr. Franklin appealed the
agency’s decision and the agency moved to dismiss the
appeal as untimely filed. The administrative judge or-
dered Mr. Franklin to show cause why his appeal should
not be dismissed as untimely. On January 20, 2011, the
administrative judge issued an initial decision dismissing
the appeal. The administrative judge considered the two
month delay from the time Mr. Franklin’s appeal was due
substantial and accounted for the fact that he was repre-
sented rather than proceeding pro se. With regard to Mr.
Franklin’s explanations for his late filing, the administra-
tive judge determined that the attorney’s jury duty was
not sufficient good cause to excuse the delay. It explained
that no allegations were presented that during jury duty,
Mr. Franklin’s attorney was unable to review his mail,
visit his office, or contact Mr. Franklin. Furthermore,
there was no explanation for why the attorney failed to
file an appeal during the forty-nine days following the end
of his jury duty. To the extent that Mr. Franklin argued
that his lawyer’s inaction constituted good cause for
delay, the administrative judge found that no deception or
affirmative wrongdoing by his lawyer occurred, and mere
negligence, even if shown, would not suffice to constitute
good cause for the late filing. Thus, the administrative
judge concluded that “the appellant has failed to demon-
strate the due diligence and ordinary prudence that would
make a good cause finding appropriate for the appellant’s
untimely filing of his Board appeal” and dismissed the
appeal as untimely. Franklin v. Dep’t of Veterans Affairs,
No. SF0432110103-I-1 slip op. at 6 (M.S.P.B. Jan. 20,
2011).
FRANKLIN   v. MSPB                                         4


    Mr. Franklin petitioned the full Board for review. On
August 19, 2011, the Board found that no significant new
evidence was presented that was previously unavailable,
and the administrative judge’s dismissal of Mr. Franklin’s
untimely petition was appropriate.

   Mr. Franklin appeals. We have jurisdiction over Mr.
Franklin’s appeal pursuant to 5 U.S.C. § 7703(c).

                         ANALYSIS

    The scope of review in an appeal from a Board deci-
sion is limited. We can only set aside a Board’s decision if
it was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).

     When an appellant has timely elected to pursue the
agency’s EEO process, there are two triggers for an ap-
peal to the Board. If a FAD is issued, an appeal must be
filed with the Board no later than thirty days after the
date of the appellant’s receipt of the agency’s decision; or,
if the agency has not issued a FAD within 120 days after
the EEO complaint was filed, the appellant can appeal to
the Board at any point after 120 days have passed. 5
C.F.R. § 1201.154(b). If an appellant does not submit its
appeal within the regulatory timeframe, it will be dis-
missed as untimely unless the appellant can show good
cause for the delay. Id. § 1201.22(c).

    The finding 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.
5                                          FRANKLIN   v. MSPB


Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc). The appellant bears the burden in demonstrat-
ing an excusable delay by showing an exercise of due
diligence or ordinary prudence under the circumstances.
Id. When evaluating whether the appellant’s burden is
met, several factors are considered including, inter alia,
the length of the delay, whether the appellant was noti-
fied of the time limit, whether appellant was represented,
the existence of circumstances beyond the appellant’s
control that affected her ability to comply with the dead-
line, the appellant’s negligence, if any, and any unavoid-
able casualty or misfortune that may have prevented
timely filing. See Zamot v. Merit Sys. Prot. Bd., 332 F.3d
1374, 1377 (Fed. Cir. 2003).

    Mr. Franklin does not dispute that his appeal was un-
timely. Rather, he urges that the Board erred in failing to
find good cause for his almost two month delay. On
appeal, he recounts his efforts to contact his attorney and
pursue his appeal. Since none of these facts appear in the
record below we cannot consider them.

    Based on the record on appeal, we find that the Board
acted within its discretion in dismissing the appeal as
untimely because several factors weigh against finding
good cause for Mr. Franklin’s delay. First, the length of
the delay is a significant factor in determining good cause,
with longer delays carrying heavier weight against a
finding of good cause. See Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1582 (Fed. Cir. 1994). The Board correctly
found that the delay of almost two months was significant
and thus weighed against a finding of good cause. Simi-
larly, the fact that Mr. Franklin was represented weighs
against a finding of good cause. With regard to whether
Mr. Franklin was made aware of the time limit, the FAD
clearly stated that he had thirty days to file his appeal.
FRANKLIN   v. MSPB                                        6


He has admitted to receiving the FAD on August 6 and
his attorney indicated he received it some time after
September 15. Thus, at the latest, both Mr. Franklin and
his attorney were made aware of the time limit more than
forty-nine days before the appeal was filed; this factor
also weighs against a finding of good cause. Finally, to
the extent that Mr. Franklin relies on his attorney’s
negligence—specifically, his failure to act while serving on
a jury—as grounds for finding good cause, this reliance is
misplaced. As we have previously held in a similar situa-
tion, “[i]t is well settled that a person is bound by the
consequences of his representative’s conduct, which
includes both his acts and omissions.” Rowe v. Merit Sys.
Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986) (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)). Mr.
Franklin is bound by the actions of his attorney, including
his failure to file an appeal while serving on jury duty or
in the subsequent forty-nine days. And, as the Board
noted, the record before it was devoid of any evidence that
Mr. Franklin was impeded from filing the appeal himself
or acquiring alternative counsel to file the appeal. Thus,
the Board’s determination that the evidence presented
weighed against excusing Mr. Franklin’s delay is sup-
ported by substantial evidence. Because the Board acted
within its discretion in finding that Mr. Franklin failed to
show good cause for his delay and dismissing his appeal
as untimely, we affirm.

                          COSTS

   Each party shall bear its own costs.

                       AFFIRMED
