                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                       06-3093

                             CLIFTON W. ASHWORTH,

                                                     Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent.



                          __________________________

                              DECIDED: June 9, 2006

                          __________________________



Before SCHALL, LINN, and DYK, Circuit Judges.

PER CURIAM.

      Clifton W. Ashworth (“Ashworth”) appeals a final decision of the Merit Systems

Protection Board (“Board”), Ashworth v. Dep’t of the Army, No. SF-3443-05-0639-I-1

(M.S.P.B. Oct. 6, 2005) (“Final Order”), dismissing, as having been untimely filed

without a showing of good cause for delay, Ashworth’s petition for review of the

administrative judge’s (“AJ”) initial decision, Ashworth v. Dep’t of the Army, No. SF-

3443-05-0639-I-1 (M.S.P.B. June 14, 2005) (“Initial Decision”), and ordering that the

initial decision dismissing Ashworth’s appeal for lack of jurisdiction remain the final
decision of the Board. Because the Board’s decision is not an abuse of discretion, is

supported by substantial evidence, and does not otherwise contain reversible error, we

affirm.

                                     BACKGROUND

          Ashworth is employed by the Department of the Army (the “Agency”) as a

Supervisory School-Age Coordinator. He applied for the positions of Child Development

Center Director and Training and Curriculum Specialist, but was found not qualified for

those positions because those positions require a four-year bachelors degree including

24 semester hours in higher-level courses (the “education requirement”), whereas

Ashworth has a two-year associate degree and has taken no higher-level courses.

          In May 2005, Ashworth filed an appeal with the Board, challenging the Agency’s

determination that he was not qualified and the manner in which the Agency applied the

education requirement to his employment determination. Because, in general, non-

selection of employment is not appealable to the Board, the AJ notified Ashworth of his

burden to prove jurisdiction and ordered him to submit evidence to support jurisdiction

(the “Order”). Initial Decision, slip op. at 1. Ashworth did not respond to the Order by

the June 3, 2005 due date. Id. The AJ thus considered Ashworth’s evidence that was

of record and, on June 14, 2005, concluded that it did not have jurisdiction. Id., slip op.

at 2. The initial decision stated that it would become final on July 19, 2005 “unless a

petition for review is filed by that date or the Board reopens the case on its own motion.”

Id., slip op. at 3.

          Ashworth did not respond to the dismissal until August 16, 2005, when, acting

pro se, Ashworth filed a petition for review. The Board found that the petition for review




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was untimely, but considered whether Ashworth provided a basis for waiving the filing

deadline. The Board held that Ashworth’s delay of almost one month was not minimal

and concluded that Ashworth failed to allege or provide evidence that good cause

existed for the late-filed petition. The Board therefore declined to waive the regulatory

time limit for filing the petition, dismissed the petition for review as untimely, and ordered

that the initial decision remain the final decision of the Board. Final Order, slip op. at 4.

       Ashworth timely appealed the Board’s Final Order to this court pursuant to 28

U.S.C. § 1295(a)(9).

                                       DISCUSSION

                                   A. Standard of Review

       This court must affirm a Board 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); see also Hayes v. Dep’t of the Navy, 727

F.2d 1535, 1537 (Fed. Cir. 1984). Whether the Board has jurisdiction to adjudicate a

particular appeal, however, is a question of law that we review de novo. See Campion

v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213 (Fed. Cir. 2003).               The burden of

establishing reversible error in a Board decision rests upon the petitioner. Harris v.

Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).




06-3093                                   3
                                        B. Analysis

       On appeal, Ashworth seeks review of both the substance of the final decision

and the Board’s conclusion that his petition for rehearing was untimely. As concerns

the timeliness issue, Ashworth argues that his delay in filing the petition for review was

due to information he characterizes as “misleading” that led to confusion on his part as

to which agency had jurisdiction over his appeal – the Board or the Office of Special

Counsel, where Ashworth was pursuing a similar complaint. Ashworth does not dispute

the untimeliness of his petition for review; rather, he argues that the Board erred in

finding no good cause existed for the delay because he relied on the information that

“misled” him to think that the Office of Special Counsel may have jurisdiction over his

employment dispute and he did not want to waste the Board’s time in reviewing a claim

that was not properly before the Board.

       Before the Board, the petitioner has the burden of establishing that a delay in

filing the petition for review was excusable. Mendoza v. Merit Sys. Prot. Bd., 966 F.2d

650, 653 (Fed. Cir. 1992) (en banc). When determining whether a petitioner has shown

good cause for an untimely filing, the Board considers: (a) the length of the delay; (b)

the reasonableness of the petitioner’s excuse and any showing of due diligence; (c)

whether the petitioner is proceeding pro se; (d) whether the petitioner has presented

evidence of the existence of circumstances beyond his or her control that affected the

petitioner’s ability to comply with the applicable time limit; and (e) whether the petitioner

suffered some unavoidable casualty or misfortune that caused the appellant’s filing to

be untimely. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). Finally,

whether the time limit for a filing deadline should be waived based upon a showing of




06-3093                                   4
good cause is a matter entrusted to the Board’s discretion, and we will not substitute our

judgment for that of the Board. Mendoza, 966 F.2d at 653.

       We see no reason to disturb the Board’s conclusion that Ashworth failed to

establish good cause for his delay in filing his petition for review.             Ashworth

acknowledges that he failed to file a petition for review because he understood that “the

Board may not have jurisdiction over my appeal.” Although Ashworth is acting pro se,

his belief that an appeal is hopeless or electing another avenue of appeal does not

establish good cause for the untimely filing of a petition for review. See Zamot v. Merit

Sys. Prot. Bd., 332 F.3d 1374, 1378 (Fed. Cir. 2003) (stating that “an election not to

pursue further remedies because of a belief that further review would be fruitless does

not constitute a showing of good cause for a filing delay” and concluding there was no

good cause for delay where petitioner was uncertain as to whether the Board had

jurisdiction and, rather than file a timely appeal with the full Board, elected to pursue a

complaint with the Equal Employment Opportunity Commission). On this record, we

cannot conclude that the Board abused its discretion by holding that Ashworth failed to

demonstrate good cause for his untimeliness.

       As concerns Ashworth’s arguments relating to the substance of the initial

decision, we are without jurisdiction to consider those arguments. Because we affirm

the Board’s dismissal of Ashworth’s petition for review of the initial decision, the initial

decision remains the final decision of the Board, effective July 19, 2005.             See

5 C.F.R. § 1201.113. Any appeal to this court regarding the final decision of the Board

should have been filed not later than 60 days from the date Ashworth received notice of

that decision. See 5 U.S.C. § 7703(b)(1). However, Ashworth’s petition for review was




06-3093                                  5
not filed until December 13, 2005, almost three months later. Because Ashworth’s

appeal from the initial decision is untimely, it will not be considered here.

       For the foregoing reasons, the decision of the Board is affirmed.

                                              COSTS

       No costs.




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