                      NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                      2009-3288


                                  ROBERT M. MCCOY,

                                                          Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Robert M. McCoy, of Rices Landing, Pennsylvania, pro se.

      Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2009-3288

                                ROBERT M. MCCOY,

                                                            Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.

Petition for review of the Merit Systems Protection Board in PH0353070455-I-3.

                           ___________________________

                           DECIDED: January 6, 2010
                           ___________________________

Before LOURIE, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Robert M. McCoy appeals from a final decision of the Merit Systems Protection

Board (Board) dismissing his petition as untimely filed. See McCoy v. U.S. Postal Serv.,

No. PH0353070455-I-3 (M.S.P.B. Nov. 24, 2008) (initial decision); McCoy v. U.S. Postal

Serv., No. PH0353070455-I-3 (M.S.P.B. Sept. 3, 2009) (final order dismissing petition

for review). For the reasons discussed below, we affirm.

                                   BACKGROUND

      Mr. McCoy filed an appeal with the Board, alleging that the United States Postal

Service violated his rights under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) by failing to

reemploy him after his military service.    At a prehearing conference, the parties’
representatives informed the Board that they reached a settlement. The parties filed a

settlement agreement resolving the appeal on November 19, 2008. This settlement

agreement specifically provided that Mr. McCoy had reviewed and understood the

agreement, that he had discussed the agreement with his attorney, and that he

voluntarily accepted the agreement as resolving his claims.

        The administrative judge (AJ) issued an initial decision on November 24, 2008,

dismissing the appeal as withdrawn in view of the settlement agreement. The AJ’s

decision informed Mr. McCoy that the initial decision would become final unless he filed

a petition for review on or before December 29, 2008.

        Six months later, on June 30, 2009, Mr. McCoy filed a petition for review of the

AJ’s initial decision dismissing his case. Mr. McCoy alleged that his attorney settled the

case without Mr. McCoy’s consent. Mr. McCoy further alleged that he had not received

the AJ’s initial decision and notification of the time limit for filing a petition for review until

January 2009 because he had been incarcerated from October 31, 2008 to January 1,

2009.

        The Clerk of the Board informed Mr. McCoy that his petition was untimely filed

and directed Mr. McCoy to submit a motion asking the Board to waive the time limit for

good cause. Mr. McCoy submitted the requested motion. In his motion, Mr. McCoy

explained that he had not received the AJ’s initial decision and notification of the

December 29, 2008 time limit for filing a petition for review until January 2009 due to his

incarceration. He also stated that he had “a little brain damage” from an earlier accident

and that he had been trying unsuccessfully to obtain new legal representation since the

dismissal of his case.




2009-3288                                       2
       The Board construed Mr. McCoy’s petition for review as also encompassing a

motion to reopen the case. The Board explained that the time limit for filing a petition

for review of an initial decision can be waived only if the petitioner makes a showing of

good cause for the delay. 5 C.F.R. § 1201.114(f). The Board determined that Mr.

McCoy’s asserted justifications for the delay—specifically, his incarceration, inability to

obtain counsel, alleged brain damage, and alleged evidence of attorney misconduct—

were not sufficient to establish good cause for his six-month delay in filing. Therefore,

the Board dismissed Mr. McCoy’s petition for review as untimely filed without a showing

of good cause and denied his petition to reopen.

                                      DISCUSSION

       Mr. McCoy appeals from the Board’s final decision, and we have jurisdiction

under 28 U.S.C. § 1295(a)(9).      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 procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We have

explained that “whether a 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 that

we will not substitute our own judgment for that of the Board. See Mendoza v. Merit

Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992).

       The Board observed, correctly, that a petitioner’s delay in filing is excusable

where the petitioner has exercised diligence or ordinary prudence under the

circumstances.    Mendoza, 966 F.2d at 653.         The petitioner bears the burden of

demonstrating excusable delay.      Id.   Therefore, Mr. McCoy was required to prove




2009-3288                                   3
before the Board facts showing that he exercised diligence or ordinary prudence in filing

his appeal six months after the December 29, 2008 time limit.

       Substantial evidence supports the Board’s conclusion that Mr. McCoy did not

meet this burden. The Board observed that Mr. McCoy had been released from prison

nearly six months before he filed his petition. Therefore, the Board determined that Mr.

McCoy’s incarceration was irrelevant to the issue of whether he had shown good cause

for this six-month delay in filing. The Board also determined that Mr. McCoy’s lack of

representation did not establish good cause for the delay because Mr. McCoy had

previously been advised that counsel was not required in proceedings before the Board

and that he would need to proceed pro se, if necessary. Further, the Board determined

that Mr. McCoy’s alleged brain damage did not establish good cause, because Mr.

McCoy had not explained what exactly this brain damage was or how it contributed to

the delay in filing his petition. Finally, the Board stated that even if Mr. McCoy had

discovered evidence of attorney misconduct that could potentially invalidate the

settlement agreement, this evidence (of which he was aware no later than January

2009) could not provide good cause for his subsequent six-month delay in filing. In view

of the above considerations, substantial evidence supports the Board’s conclusion that

Mr. McCoy failed to establish good cause for his six-month delay in filing a petition for

review of the AJ’s initial decision dismissing his case.

       For the foregoing reasons, we affirm the final decision of the Board dismissing

Mr. McCoy’s petition as untimely filed without good cause and denying his motion to

reopen.




2009-3288                                    4
                 COSTS

     No costs.




2009-3288          5
