       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               WILLIAM J. BREWER,
                    Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2016-1471
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0216-B-1.
                ______________________

                Decided: May 10, 2016
                ______________________

   WILLIAM J. BREWER, Lancaster, CA, 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 O’MALLEY, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
2                                           BREWER   v. MSPB



    William J. Brewer appeals from the decision of the
Merit Systems Protection Board dismissing his appeal as
untimely filed. As Mr. Brewer has failed to demonstrate
that the Board abused its discretion or acted arbitrarily or
capriciously in dismissing his appeal, we affirm.
                       BACKGROUND
     Mr. Brewer was removed from his position with the
Army Corps of Engineers effective November 3, 2014.
The removal notice informed Mr. Brewer of his right to
appeal his dismissal to the Board within 30 days and his
right to file an Equal Employment Opportunity (“EEO”)
complaint alleging discrimination within 45 days. On
December 22, 2014, 49 days after his removal, Mr. Brewer
filed both an appeal with the Board and an EEO com-
plaint with the agency.
     An administrative judge dismissed the Board appeal
as untimely filed under 5 C.F.R. § 1201.22 because
Mr. Brewer had not filed it within 30 days, finding
Mr. Brewer did not demonstrate good cause for the delay.
Mr. Brewer explained that his delay was due to various
tasks following his removal, including “obtaining retire-
ment options, obtaining health insurance for my family,
filing unemployment insurance, research[ing] and ob-
tain[ing] documents for the appeal, making the appeal,
and dealing with the holiday season of activities, office
closure, etc.” Supplemental Appendix 15. The adminis-
trative judge found good cause lacking for the 19-day
delay, even considering Mr. Brewer’s pro se status, be-
cause Mr. Brewer had not requested an extension before
the filing deadline, could have used an appeal form sup-
plied by the Board, did not present evidence of circum-
stances beyond his control, and had filed two previous
appeals with the Board.
    Following a petition for review, the Board agreed with
the administrative judge’s determination that there was
not good cause for Mr. Brewer’s delay in filing his appeal
BREWER   v. MSPB                                         3



to the Board under § 1201.22. The Board considered
Mr. Brewer’s explanation that he was unable to timely file
his appeal because he experienced stress due to his sud-
den job loss, because he had to travel to Egypt to look
after his children, and because he did not have legal
counsel to assist him, but found that these reasons did not
demonstrate due diligence or ordinary prudence to justify
the late filing. But the Board remanded the appeal be-
cause the record lacked evidence regarding the scope and
status of Mr. Brewer’s EEO complaint. The Board ex-
plained that to the extent the EEO complaint encom-
passed the agency’s removal action (i.e., a “mixed case”
complaint under 29 C.F.R. § 1614.302), the timeliness
standards under 5 C.F.R. § 1201.154 may apply, but if the
EEO complaint was also untimely filed, the time limits
under § 1201.22 would apply instead.
    On remand, the administrative judge ordered the par-
ties to submit evidence regarding the EEO complaint. In
view of evidence submitted by the agency, the administra-
tive judge found that on October 1, 2015, the Office of
Federal Operations had affirmed the agency’s final dis-
missal of Mr. Brewer’s EEO complaint as untimely. The
administrative judge thus dismissed Mr. Brewer’s appeal
as untimely under both § 1201.154 and § 1201.22.
Mr. Brewer did not petition for review, and the decision of
the administrative judge became the final decision of the
Board.
    Mr. Brewer appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    We must affirm a final decision of the Board unless it
is (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 evidence.
5 U.S.C. § 7703(c). “[W]hether the regulatory time limit
4                                          BREWER   v. MSPB



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).
     The appellant has the burden to prove, by a prepon-
derance of the evidence, that his appeal was timely filed.
5 C.F.R. § 1201.56(b)(2)(i)(B). Because Mr. Brewer did
not timely file a mixed case complaint with the agency
under § 1614.302 and § 1201.154, his appeal to the Board
must satisfy the timeliness requirements in § 1201.22,
which sets a 30-day deadline for an appeal absent good
cause. Although it is undisputed that Mr. Brewer did not
file his appeal to the Board within the 30 days required by
§ 1201.22, the Board may waive the timeliness require-
ment for good cause. “To establish good cause for a filing
delay, an appellant must show that the delay was excusa-
ble under the circumstances and that the appellant exer-
cised due diligence in attempting to meet the filing
deadline.” Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374,
1377 (Fed. Cir. 2003). In making this determination, we
have approved use of the factors the Board set forth in
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184
(1980). See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578,
1582 (Fed. Cir. 1994). Specifically, in evaluating good
cause, the Board considers:
    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.
BREWER   v. MSPB                                         5



Id. (quoting Alonzo, 4 M.S.P.R. at 184).
     Here, after Mr. Brewer was afforded an opportunity to
explain the reasons for his delay in filing his appeal, the
administrative judge and the Board properly considered
the relevant factors in determining that Mr. Brewer had
not demonstrated good cause for his delay. Specifically,
both the administrative judge and the Board properly
found that Mr. Brewer received notice of the filing dead-
line, had familiarity with the Board’s appeal procedures
through his involvement in two prior appeals, failed to
request an extension prior to the filing deadline, and did
not present evidence of circumstances beyond his control.
The reasoning provided by the Board does not reflect an
abuse of discretion or arbitrary or capricious decisionmak-
ing. As “this court will not substitute its own judgment
for that of the Board,” Mendoza, 996 F.2d at 653, we
affirm the dismissal of Mr. Brewer’s appeal as untimely
filed.
                       AFFIRMED
                          COSTS.
   No Costs.
