N OTE : This disposition is nonprecedential.



# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

LAWRENCE ALAN LEVINE, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2012

- 3171

______________________

Petition for review of the Merit Systems Protection

Board in No. DC0752100529 -I- 1.

- - - - - - - - - - - - - - - - - - - - - -

LAWRENCE ALAN LEVINE, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2012

- 317 2

______________________ Petition for review of the Merit Systems Protection

Board in No. DE315H110517 -I- 1.LAWRENCE LEVINE v. MSPB 2

______________________

Decided: May 13, 2013

______________________

L AWRENCE A LAN L EVINE , of Leavenworth, Kansas, pro

se.

S ARA B. R EARDEN , Attorney, Office of General Cou nsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief were J AMES M.

E ISENMANN , General Counsel, and K EISHA D AWN B ELL

, Deputy General Counsel.

______________________

Before P ROST

, M AYER

, and R EYNA

, Circuit Judges.

P ER C URIAM

.
Lawrence Alan Levine seeks review of two final o rders of the Merit Systems Protection Board (“board”): Levine v. Dep’t of the Army , No. DC

- 0752

- 10

- 0529 -I- 1,

2 012 MSPB LEXIS 3400 (June 14, 2012) (“ Timeliness
Order ”); Levine v. Dep’t of the Army , No. DE

- 315H

- 11

- 0517 -I- 1, 2012 MSPB LEXIS 3399 (June 14, 2012) (“Jurisdictional Order ”). We affirm both orders.

I. B ACKGROUND

In February 2010, Levine began working for the Uni ted States Army as an Intelligence Specialist. This pos ition was subject to the completion of a one

- year trial period. In a letter dated April 12, 2010, the Army notified Levine that he was being removed from his position “because [his] work perfo rmance during [his] trial period fail[ed] to demonstrate

. . . fitness and qualification for continued employment.”

Levine appealed his termination to the board, arguing that the Army’s removal decision was based upon “inco m-LAWRENCE LEVINE v. MSPB 3

plete and inaccurate informati on.” In an initial decision dated August 5, 2010, an administrative judge dismissed the appeal for lack of jurisdiction. Citing 5 U.S.C. § 7511(a)(1)(B), the judge explained that board appeal rights are generally available only to those employees who

hav e “completed 1 year of current continuous service in the same or similar positions in an Executive agency or in
the United States Postal Service or Postal Rate Commi ssion.” Because Levine had less than one year of contin uous government service at the time of his removal

— and

he made no non

- frivolous allegations that his termination was based upon his marital status or partisan political

reasons— the administrative judge concluded that the board had no jurisdiction over his appeal. The judge rejected Levine’ s argument that he had a right to appeal to the board because he was hired pursuant to the Vete rans Readjustment Act (“VRA”), noting that the “unrefuted record” established that Levine was not hired pursuant to

the VRA.

The administrative judge’s initial decision specifically informed Levine that if he wished to file a petition for review with the board, he was required to do so by Se ptember 9, 2010. Levine, however, did not file a petition for review until December 19, 2011, more than fifteen
months afte r the filing deadline. On June 14, 2012, the board issued a final order dismissing his petition for review as untimely filed. The board noted that Levine’s filing delay was “quite lengthy,” Timeliness Order

, 2012 MSPB LEXIS 3400, at *3, and concluded tha t he had failed to show good cause for the delay, id. at *5.

On April 25, 2011, Levine secured a new position with the Army, this time as a Training Instructor with the Army’s Counterinsurgency Center. This appointment was also subject to a one

- year probationary period. In his application for the position, Levine averred that he had not been “fired from any job for any reason” in the prev ious five years.LAWRENCE LEVINE v. MSPB 4

On July 1, 2011, the Army notified Levine that it pr oposed to remove him from his position as a Training Instructor based upon his failure to disclose that he had previously been terminated from his position as an Inte lligence Specialist. The Army provided him with an oppo rtunity to respond to the proposed termination notice, and
Levine thereafter s ubmitted a lengthy response. The Army subsequently issued a written notice informing Levine that he would be removed from his position effe ctive August 2, 2011.

Levine appealed to the board. On September 13, 2011, an administrative judge issued an acknow ledgment order informing Levine that the board might not have jurisdiction over his appeal because he was serving as a probationary employee at the time of his termination. In response, Levine indicated that he had been in contact with Army employees, inc luding officials in the Office of Inspector General, regarding his termination and that he had “made good

- faith attempts to resolve [the] matter through the chain of command.”

In an initial decision, dated November 14, 2011, the administrative judge dismi ssed Levine’s appeal for lack of jurisdiction. The judge determined that the board had no jurisdiction over the appeal because he was terminated from his position as a Training Instructor during his probationary period and the Army had fully complied

with the procedures required by 5 C.F.R. § 315.805 when

it removed him.

Levine then filed a timely petition for review with the board, but the board denied his petition on June 14, 2012. The board rejected the argument that the Army

had failed to follow the procedural requirements set forth in section 315.805, concluding that Levine had been properly provided with advance written notice of his proposed termination and that the Army had afforded him an adequate opportunity to respond to the noticeLAWRENCE LEVINE v. MSPB 5

proposing h is removal. Jurisdictional Order

, 2012 MSPB LEXIS 3399, at *6

- 7.

Levine subsequently filed two appeals with this court: (1) an appeal seeking review of the board’s decision to dismiss, as untimely filed, his petition for review of the

initial decision dismissing his challenge to the Army’s decision to remove him from his position as an Intell igence Specialist; and (2) an appeal seeking review of the board’s decision denying his petition for review of the initial decision dismissing, for lack of jurisdic tion, his challenge to the Army’s decision to terminate him from his position as a Training Instructor. We granted Le vine’s motion to consolidate his appeals on April 25, 2013.

II. D ISCUSSION

Our review of a decision of the board is circumscribed by statu te. We can set aside a board decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idence.” 5 U.S.C. § 7703(c). We review the board’s dec isions regarding its own jurisdiction without deference. King v. Briggs , 83 F.3d 1384, 1387 (Fed. Cir. 1996).

A. T HE B OARD ’ S T IMELINESS O RDER

We turn first to Levine’s challenge to t he Army’s dec ision to remove him from his position as an Intelligence Specialist. In its Timeliness Order, the board concluded that Levine had failed to establish good cause for his
fifteen

- month delay in filing his petition for review of the

initial deci sion dismissing his appeal for lack of jurisdi ction. The board “has broad discretion to control its own

docket.” Olivares v. Merit Sys. Prot. Bd. , 17 F.3d 386, 388 (Fed. Cir. 1994). Accordingly, “whether the regulatory time limit for an appeal should be waived based upon a showing of good cause is a matter committed to theLAWRENCE LEVINE v. MSPB 6

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).

A petit ioner who files a petition for review past the fi ling deadline bears the burden of establishing that there was “good cause” for his delay. Zamot v. Merit Sys. Prot.

Bd. , 332 F.3d 1374, 1377 (Fed. Cir. 2003). Factors i mportant in determining whether there was good cause for an untimely filing include the length of the delay, whet her the petitioner was notified of the time limit, the exis tence of circumstances beyond the petitioner’s control that affected his ability to comply with the deadline, and

whether there was any unavoidable misfortune or other circumstance that may have prevented the timely filing of a petition for review. Id.

As the board correctly determined, Levine failed to e stablish good cause for filing his petition for review fifteen

months past the filing deadline. Levine’s filing delay was substantial, and he presented no evidence showing that he acted with due diligence or ordinary prudence in attempting to meet the filing deadline. Before the board, Levine asserted that he had good caus e for his untimely filing because he had only recently learned that the Army should have provided him with appeal rights to the Secr etary of Defense before terminating him from his position as an Intelligence Specialist. However, he failed to cite
any sta tute or regulation that gave him the right to appeal his termination directly to the Secretary of D efense. See Timeliness Order

, 2012 MSPB LEXIS 3400, at

*4- 5.

On appeal, Levine alleges that he “began to exper ience harassment from defense contract manag ement” soon after he arrived in Afghanistan, and that when he attempted to use “government

- furnished computers to support his mission, he was publically accused of havingLAWRENCE LEVINE v. MSPB 7

an ‘entitlement mentality.’” He further asserts that his
“confidential medical infor mation” was improperly di sclosed to employees of a defense contractor. Levine alle ges, moreover, that various individuals took part “in a deliberate campaign to malign [his] integrity, reputation and honor.” These unsupported allegations do not, ho wever, provide any reasonable explanation for why Levine waited fifteen months after the filing deadline to file his petition for review. Because the record contains no ev idence demonstrating that circumstances beyond his control prevented Levine from submitting his petition for review in a timely manner, the board did not abuse its discretion in refusing to waive the filing deadline. See

Zamot , 332 F.3d at 1377 (explaining that a petitioner bears a “heavy burden” when attempting to show “that

the Board abused its discretion in finding that he failed to show good cause for the delay in filing his petition for review”).

B. T HE B OARD ’ S J URISDICTIONAL O RDER

The board likewise correctly determined that it had no jurisdiction to consider Levine’s appeal challengin g the Army’s decision to remove him from his position as a Training Instructor. As discussed previously, the Army removed Levine, during his probationary period, for failing to disclose the fact that he had previously been terminated from his position as an Intelligence Specialist. Probationary employees have very limited rights to a ppeal to the board. See Carrow v. Merit Sys. Prot. Bd.

, 626 F.3d 1348, 1352 (Fed. Cir. 2010); Bante v. Merit Sys. Prot.

Bd. , 966 F.2d 647, 649

- 50 (Fed. Cir. 1992). In genera l, a probationary employee can appeal to the board only if he

makes non

- frivolous allegations that: (1) he was term inated based on marital status or for partisan political reasons; or (2) he was terminated for pre

- appointment reasons and the agency failed to follow the procedures required by section 315.805. See 5 C.F.R. § 315.806;LAWRENCE LEVINE v. MSPB 8

Pierce v. Gov. Printing Office , 70 F.3d 106, 108 (Fed. Cir. 1995).

As the board correctly determined, Levine failed to carry his burden of establishing that the board had juri sd iction over his appeal. See Garcia v. Dep’t of Homeland

Sec. , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc) (e xplaining that the petitioner bears the burden of establis hing board jurisdiction by a preponderance of the evidence). Before the board, he made no non

- frivolous allegations
that he was terminated based on his marital status or for partisan political reasons. The record shows, moreover, that the Army followed th e procedures mandated by section 315.805 when it removed Levine from his position as a Training Instructor. See Younies v. Merit Sys. Prot.

Bd. , 662 F.3d 1215, 1218 (Fed. Cir. 2011) (“The right to appeal under § 315.806(c) is only available to those prob ationary employees who qualify for, but allegedly do not receive, the termination procedures of § 315.805.”). He was provided with advance written notice of the reasons for his proposed termination, and was given fourteen days to prepare a response to this notice. Levine submitted a lengthy response, which totaled 145 pages with encl osures. After receiving this response, the Army provided

Levine with written notice of its final decision to term inate him effective August 2, 2011. See Jurisdictional

Order

, 2012 MSPB LEXIS 3399, at *6

- 7.

Levine contends that he has a “Liberty Interest that demands redress through Due Process of Law and pr ovides [board] jurisdiction.” We disagree. A government employee who has completed his probationary period is
afforded a number of protections, including, under many circumstances, the right to appeal adverse actions to the

board. See 5 U.S.C. § 7513. Probationary employees such as Levine do not, however, have the same procedural rights and can appeal to the board only under very li mited circumstances. See 5 C.F.R. § 315.803(a) (“The agency shall utilize the probationary period as fully asLAWRENCE LEVINE v. MSPB 9

possible to determine the fitness of the employee and shall terminate his services during this period if he fails
to demonstrate ful ly his qualifications for continued employment.”).

We have considered Levine’s remaining arguments but do not find them persuasive. We therefore affirm

both the board’s Timeliness Order and its Jurisdictional

Order.

AFFIRMED