NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

WILLIAM STEPHEN LUSH, II 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2011-3131 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. AT3330090169-I-1. 

__________________________ 

Decided: May 14, 2012 

__________________________ 

WILLIAM STEPHEN LUSH, II, of Middleton, Wisconsin, 

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. 

__________________________ 
LUSH v. MSPB 2

Before NEWMAN, CLEVENGER, and WALLACH, Circuit 

Judges. 

CLEVENGER, Circuit Judge. 

The petitioner, William Stephen Lush, II petitions for 

review of the final order of the Merit Systems Protection 

Board (“Board”) dismissing his petition for review as 

untimely filed. Lush v. Dep’t of the Treasury, No. AT3330-09-0169-I-1, 2011 MSPB LEXIS 1517 (M.S.P.B. Mar. 

10, 2011). Since we find no error in the Board’s decision, 

we affirm. 

I 

Mr. Lush was terminated from his position as a Data 

Transcriber at the Wage and Income Center for the Internal Revenue Service in Atlanta, Georgia. On August 19, 

2008, Mr. Lush filed an appeal challenging the agency’s 

termination decision, and the agency submitted evidence 

that Mr. Lush was terminated during his probationary 

period. As a result, the administrative judge found that 

Mr. Lush’s termination was not within the Board’s jurisdiction and dismissed his appeal. Lush v. Dep’t of the 

Treasury, No. AT-0752-08-0778-I-1, slip op. (M.S.P.B. 

Sept. 30, 2008). 

Mr. Lush appealed the administrative judge’s initial 

decision to the Board. Although the Board denied Mr. 

Lush’s petition for review, it determined that in Mr. 

Lush’s submission below, he appeared to have raised 

claims under the Uniformed Services Employment and 

Reemployment Rights Act of 1995 (“USERRA”) and the 

Veterans Employment Opportunities Act of 1998 

(“VEOA”) that were not addressed by the administrative 

judge. Therefore, the Board remanded these matters to 

the Atlanta Regional Office for docketing and adjudication 
3 LUSH v. MSPB

as new appeals. Lush v. Dep’t of the Treasury, No. AT0752-08-0778-I-1, slip op. (M.S.P.B. Dec. 4, 2008). 

On March 10, 2009, the administrative judge issued 

an order notifying Mr. Lush that there was a question of 

whether the VEOA appeal was within the Board’s jurisdiction; this order set out the criteria for establishing 

jurisdiction under the VEOA.1 In response to this order, 

Mr. Lush submitted a declaration of jurisdiction and 

proof, in which he claimed to have sent a letter to the 

Department of Labor (“DOL”) as part of an administrative 

exhaustion process.. In its response, the agency denied 

violating Mr. Lush’s veterans preference rights. The 

agency also submitted a letter from the DOL regional 

administrator, who stated that the DOL had never received a complaint from Mr. Lush. 

On March 31, 2009, the administrative judge issued 

an initial decision finding that Mr. Lush failed to provide 

any evidence that DOL ever received his complaint. Lush 

v. Dep’t of the Treasury, No. AT-3330-09-0169-I-1, 2009 

MSPB LEXIS 1943 (M.S.P.B. Mar. 31, 2009). Since 

exhaustion of the DOL complaint process is a jurisdictional prerequisite to pursuit of a Board appeal under the 

VEOA, the administrative judge dismissed Mr. Lush’s 

appeal for lack of jurisdiction. The initial decision became 

the final decision of the Board on May 5, 2009, and Mr. 

 1 The administrative judge issued a similar order in 

Mr. Lush’s USERRA appeal. Mr. Lush failed to respond, 

and the administrative judge issued an initial decision 

dismissing the USERRA appeal for lack of jurisdiction. 

Lush v. Dep’t of the Treasury, No. AT-4324-09-6165-I-1, 

2009 MSPB LEXIS 2048 (M.S.P.B. Apr. 1, 2009). The 

initial decision became the final decision of the Board on 

May 6, 2009. Mr. Lush did not petition the Board for 

review of the administrative judge’s April 1, 2009, decision. 
LUSH v. MSPB 4

Lush did not seek review of that decision in this court. 

On August 6, 2010, more than one year after the decision 

became final, Mr. Lush petitioned the Board for review of 

the March 31, 2009, initial decision. 

In September 2010, Mr. Lush filed a motion to accept 

his filing as timely or, in the alternative, to waive or set 

aside the time limit. In this motion, Mr. Lush asserted 

that he had been mentally ill since 2002 and that he did 

not request an extension of time to file a petition for 

review because he did not know that he could ask for 

another review. In October 2010, Mr. Lush sent the 

Board a letter, to which he attached medical records 

regarding his mental illness. 

On March 10, 2011, the Board dismissed Mr. Lush’s 

petition for review as untimely filed without a showing of 

good cause for the delay. Lush, 2011 MSPB LEXIS 1517. 

The Board found that the administrative judge’s initial 

decision informed Mr. Lush that the decision would 

become final on May 5, 2009. The Board noted that the 

Clerk, after receiving Mr. Lush’s petition for review, 

informed Mr. Lush that his petition may be dismissed as 

untimely unless he filed a motion or affidavit showing 

that his petition for review was timely filed or that good 

cause existed for the delay. Additionally, the Board noted 

that the Clerk informed Mr. Lush what he needed to show 

in order to establish good cause based on medical reasons. 

As to the medical evidence, which the Board considered 

even though Mr. Lush submitted it after the record had 

closed, the Board stated that it did not explain how his 

mental illness prevented him from timely filing his petition for review. Thus, the Board dismissed Mr. Lush’s 

petition for review as untimely filed without a showing of 

good cause for the delay. 
5 LUSH v. MSPB

Mr. Lush timely petitioned this court for review of the 

Board’s dismissal order. We have jurisdiction over appeals from final decisions of the Board. 28 U.S.C. 

§ 1295(a)(4). Our task is to determine whether the 

Board’s decision was arbitrary, capricious, an abuse of 

discretion, not in accordance with the law, or unsupported 

by substantial evidence. 5 U.S.C. § 7703(c); Sandel v. 

Office of Pers. Mgmt., 28 F.3d 1184, 1186 (Fed. Cir. 1994). 

If not, then we must affirm the final ruling of the Board. 

II 

On appeal, Mr. Lush argues that the Board should not 

have dismissed his petition for review as untimely filed. 

Mr. Lush had the burden of proof by preponderance of 

the evidence concerning the timeliness of his petition for 

review. 5 C.F.R. § 1201.56(a)(2)(ii). A petition for review 

must be filed within 35 days after the issuance of the 

initial decision or if the petitioner shows that the initial 

decision was received more than five days after the date 

of issuance, then within 30 days after the date the petitioner received the initial decision. 5 C.F.R. § 

1201.114(d). In this case, the administrative judge made 

these deadlines and the importance of compliance with 

them known to Mr. Lush. 

In considering whether Mr. Lush showed good cause 

for his untimely petition for review, the Board considered 

several factors, including the length of Mr. Lush’s delay, 

the reasonableness of his excuse, his pro se filing status, 

and the medical evidence he presented. This was in 

accordance with this court’s precedent. See Walls v. Merit 

Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). When 

considering the medical evidence, the Board considered 

whether the medical evidence showed the existence of a 

condition that would affect his ability to comply with time 

limits. This court has also reviewed the medical evidence, 
LUSH v. MSPB 6

and we agree with the Board that it is insufficient to 

excuse his untimely filing of a petition for review. Mr. 

Lush has not met his burden to establish good cause for a 

delay, and substantial evidence supports the Board’s 

decision not to waive the filing deadline. 

III 

For the reasons discussed above, the decision of the 

Board is affirmed. 

AFFIRMED

COSTS

No costs.