                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3293



                               GREGORY A. LYONS,

                                                           Petitioner,


                                          v.


                     MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.

      Gregory A. Lyons, of Torrance, California, pro se.

      Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.

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                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                        2007-3293


                                    GREGORY A. LYONS,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.


                           ____________________________

                            DECIDED: December 10, 2007
                           ____________________________


Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.

                                        DECISION

       Gregory A. Lyons appeals from the decision of the Merit Systems Protection

Board (“the Board”) dismissing as untimely his appeal from a fifteen-day suspension.

Lyons v. Dep’t of Veterans Affairs, SF-0752-05-0929-I-3 (M.S.P.B. July 20, 2007) (initial

decision dated Jan. 18, 2006).       Because the Board did not abuse its discretion in

reaching its decision, we affirm.

                                      BACKGROUND

        Lyons held the position of food service worker at the Department of Veterans

Affairs (“DVA”). He was suspended for fifteen days, effective July 31, 2005, based on
charges of inappropriate and disrespectful conduct, failure to be forthcoming in an

investigation, and violation of the terms of his administrative leave.      The Board’s

Western Regional Office received an appeal notice from Lyons dated August 25, 2005,

on August 31, 2005, one day after the thirty-day window for appeal. On November 9,

2005, an administrative judge (“AJ”) at the Board’s Denver Field Office dismissed the

appeal for administrative reasons, subject to being refiled by January 11, 2006. The

appeal was reinstated on January 3, 2006, and then dismissed without prejudice again

by another AJ on September 8, 2006. It was later refiled.

      Upon review of the record, a newly-assigned AJ found that, based on Lyons’

receipt of the suspension notice, Lyons’ appeal appeared to have been filed one day

late and, on January 4, 2007, issued an order to show cause why the appeal should not

be dismissed for untimeliness. The order noted that during the time that Lyons’ appeal

was pending, the DVA had canceled the suspension and informed the Board that it

would provide Lyons with back pay and benefits; however, outstanding claims remained

that could have led to an award of damages, thus leaving the issues not fully resolved.

Lyons filed a response on January 6, 2007, stating that the DVA required him to obtain

permission to enter its property at the peril of further disciplinary action, but that the

office of his union representative was located on DVA property.        Consequently, he

stated that he was unable to meet with his union representative until August 19, 2005,

and was unable to complete his appeal until he was allowed a second meeting with the

union representative on August 31, 2005. On January 7, 2007, Lyons filed an amended

response repeating that the DVA controlled when he was able to meet with his union

representative regarding his appeal.




2007-3293                               -2-
       On January 18, 2007, the AJ issued an Initial Decision concluding that Lyons had

failed to show good cause for his untimely appeal. The AJ noted that Lyons had chosen

to rely on the union representative to aid him in filing his appeal and that an error by his

representative in determining the time for appeal was not good cause for delay. The AJ

also found that Lyons had failed to explain why the appeal could not have been filed

following his initial meeting with the union representative on August 19, 2005. Finally,

the AJ found that Lyons could have met with the union representative at an alternate

location or filed the appeal himself.

        On July 20, 2007, the Board denied Lyons’ petition for review because it found

no new, previously unavailable evidence or error of law by the AJ. See 5 C.F.R. §

1201.115. The AJ’s initial decision thus became the final decision of the Board. See 5

C.F.R. § 1201.113.      Lyons timely appealed to this court, and we have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                        DISCUSSION

       On appeal, Lyons states that the DVA threatened him with arrest and further

disciplinary action if he entered DVA property without prior permission. Lyons argues

that the DVA’s improper interference with his access to his union representative and his

own inability to understand the running of the thirty-day window for appeal establish

good cause for filing his appeal one day late. Lyons adds that the DVA has failed to

demonstrate that it would have suffered any prejudice from accepting an appeal one

day out of time and that the DVA actually had accepted the filing up until the time that

the AJ raised the issue of timeliness sua sponte. The government responds that the

Board has broad discretion in applying the good cause standard for waiver of the




2007-3293                                -3-
timeliness requirement. The government argues that Lyons has failed to explain why

his appeal could not have been filed after his initial meeting with the union

representative on August 19, 2005, and why he could not have arranged to meet his

representative at an alternate location. The government also argues that prejudice to

an agency is only considered after good cause for the delay has been demonstrated,

which did not occur here.

      The scope of our review in an appeal from a Board decision is limited. We must

affirm the Board’s decision unless it was “(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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003).

      We conclude that the Board did not abuse its discretion in finding Lyons’ appeal

to be untimely.    We have stated that “[d]elay is excusable where, under the

circumstances, a petitioner exercises diligence or ordinary prudence.” Mendoza v. Merit

Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Some of the specific

factors we have found useful to consider are:      “the length of the delay; whether

appellant was notified of the time limit or was otherwise aware of it; the existence of

circumstances beyond the control 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 showing 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.” Walls v.




2007-3293                             -4-
Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). “We have often stated that

whether the 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 this court will not

substitute its own judgment for that of the Board.” Mendoza, 966 F.2d at 653.

       Under the circumstances of this case, we cannot say that the Board abused its

discretion in finding that Lyons failed to exercise diligence and ordinary prudence.

While the possibility that the DVA may have restricted Lyons’ access to his chosen

representative for this appeal was an inconvenience, the fact remains that Lyons was

able to meet with his union representative prior to the deadline for filing his appeal.

Although the AJ relied on this fact and the government argued this point in its brief to

this court, Lyons fails to explain why his appeal could not have been filed at that time,

as he had previously been able to contact his union representative by telephone. Lyons

also fails to explain why it was error for the AJ to have found that a reasonably prudent

person would have made arrangements to meet his union representative off DVA

grounds if necessary. “The burden is on the petitioner to demonstrate excusable delay.”

Id. Given our substantial deference to the Board on timeliness issues, we conclude that

the Board did not abuse its discretion in concluding that Lyons failed to meet his burden.

       Because the Board did not abuse its discretion in concluding there was no good

cause for delay in the filing of Lyons’ appeal, and its decision is supported by substantial

evidence, we affirm its decision.




2007-3293                                -5-
