NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3288

RO BERT 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 G eneral Counsel, Merit Systems Protection Board, of Washington , DC, for respondent. With hi m on the brief were B. Chad Bungard , General Counsel, and Keisha Dawn Bell , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 dec ision of the Merit Systems Protection Board (Board) dismissing his petit ion as untimely filed. See McCoy v. U.S. Postal Serv. , No. PH0353070455-I-3 (M.S.P. B. Nov. 24, 2008) (initial decis ion); McCoy v. U.S. Postal Serv. , No. PH0353070455-I-3 (M.S.P.B. Sept. 3, 200 9) (final order dismissing petition for review). For the reasons discussed below, we affirm

. BACKGROUND Mr. McCoy filed an appeal with the Board, alle ging that the Unit ed States Postal Service violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-43 33) by failing to reemploy him after his milita ry service. At a preheari ng conference, the parties’representatives informed the Bo ard that they reached a settl ement. The parties filed a settlement agreement resolvi ng the appeal on November 19, 2008. This settlement agreement specifically provided that Mr. McCoy had reviewed and understood the agreement, that he had discuss ed the agreement with his a ttorney, and that he voluntarily accepted t he agreement as resolving his claims. The administrative judge (AJ) issued an in itial decision on November 24, 2008, dismissing the appeal as withdrawn in view of the settlement agreement.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 pe tition for review of the AJ’s initial decision dismissi ng his case. Mr. McCoy alleged that his attorney settled the case without Mr. McCoy’s cons ent. Mr. McCoy further alleged that he had not received the AJ’s initial decision and notific ation of the time limit for f iling 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. McCo y that his petition was untimely filed and directed Mr. McCoy to submit a motion aski ng the Board to waiv e the time limit for good cause. Mr. McCoy submitted the requested moti on. 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 fo r 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 obt ain new legal representation since the dismissal of his case.

2009-3288 2The 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 decis ion can be waived only if the pe titioner 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—s pecifically, 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 untim ely 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 commi tted to the Board’s di scretion” and that we will not substitute our own judgm ent 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 pet itioner’s delay in filing is excusable where the petitioner has exercised di ligence or ordinary prudence under the circumstances. Mendoza , 966 F.2d at 653. The petit ioner bears the burden of demonstrating excusable delay. Id. Therefore, Mr. McCoy was required to prove

2009-3288 3before the Board facts showi ng that he exercised diligence or ordinary prudence in filing his appeal six months after the December 29, 2008 time limit. Substantial evidence suppor ts 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 t he issue of whether he had shown good cause for this six-month delay in fi ling. The Board al so determined that Mr. McCoy’s lack of representation did not establish good caus e 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 br ain damage did not establish good cause, because Mr. McCoy had not explained what exactly this br ain damage was or how it contributed to the delay in filing his petiti on. Finally, the Board stated that even if Mr. McCoy had discovered evidence of attorney misconduc t that could potentially invalidate the settlement agreement, this evidence (of wh ich he was aware no later than January 2009) could not provide good cause for his subseque nt six-month delay in filing. In view of the above considerations, substantial evi dence 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 fi nal decision of the Board dismissing Mr. McCoy’s petition as untim ely filed without good cause and denying his motion to
reopen.

2009-3288 42009-3288 5 COSTS No costs.