NOTE: This disposition is nonprecedential.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.

______________________ 

2012-3172 

______________________ 

Petition for review of the Merit Systems Protection 

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

______________________ 

Decided: May 13, 2013 

______________________ 

LAWRENCE ALAN LEVINE, of Leavenworth, Kansas, pro 

se. 

SARA B. REARDEN, Attorney, Office of 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. 

______________________ 

Before PROST, MAYER, and REYNA, Circuit Judges.

PER CURIAM. 

Lawrence Alan Levine seeks review of two final orders of the Merit Systems Protection Board (“board”): 

Levine v. Dep’t of the Army, No. DC-0752-10-0529-I-1, 

2012 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. BACKGROUND

In February 2010, Levine began working for the United States Army as an Intelligence Specialist. This position 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 performance 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 “incom-
 LAWRENCE LEVINE v. MSPB 3

plete and inaccurate information.” 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 

have “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 Commission.” Because Levine had less than one year of continuous 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 Veterans 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 September 9, 2010. Levine, however, did not file a petition 

for review until December 19, 2011, more than fifteen 

months after 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 that 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 previous five years. 
4 LAWRENCE LEVINE v. MSPB

On July 1, 2011, the Army notified Levine that it proposed 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 Intelligence Specialist. The Army provided him with an opportunity to respond to the proposed termination notice, and 

Levine thereafter submitted a lengthy response. The 

Army subsequently issued a written notice informing 

Levine that he would be removed from his position effective August 2, 2011.

Levine appealed to the board. On September 13, 

2011, an administrative judge issued an acknowledgment 

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, including 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 dismissed 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 notice 
 LAWRENCE LEVINE v. MSPB 5

proposing his 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 Intelligence 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 jurisdiction, his 

challenge to the Army’s decision to terminate him from 

his position as a Training Instructor. We granted Levine’s motion to consolidate his appeals on April 25, 2013.

II. DISCUSSION

Our review of a decision of the board is circumscribed 

by statute. We can set aside a board decision only if 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 review the board’s decisions regarding its own jurisdiction without deference. 

King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).

A. THE BOARD’S TIMELINESS ORDER

We turn first to Levine’s challenge to the Army’s decision 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 decision dismissing his appeal for lack of jurisdiction. 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 the 
6 LAWRENCE LEVINE v. MSPB

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 petitioner who files a petition for review past the filing 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 important in determining whether there was good cause for 

an untimely filing include the length of the delay, whether the petitioner was notified of the time limit, the existence 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 establish 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 cause for his untimely 

filing because he had only recently learned that the Army 

should have provided him with appeal rights to the Secretary of Defense before terminating him from his position 

as an Intelligence Specialist. However, he failed to cite 

any statute or regulation that gave him the right to 

appeal his termination directly to the Secretary of Defense. See Timeliness Order, 2012 MSPB LEXIS 3400, at 

*4-5. 

On appeal, Levine alleges that he “began to experience harassment from defense contract management” 

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 having 
 LAWRENCE LEVINE v. MSPB 7

an ‘entitlement mentality.’” He further asserts that his 

“confidential medical information” was improperly disclosed to employees of a defense contractor. Levine alleges, moreover, that various individuals took part “in a 

deliberate campaign to malign [his] integrity, reputation 

and honor.” These unsupported allegations do not, however, 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 evidence 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. THE BOARD’S JURISDICTIONAL ORDER

The board likewise correctly determined that it had 

no jurisdiction to consider Levine’s appeal challenging 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 appeal 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 general, a 

probationary employee can appeal to the board only if he 

makes non-frivolous allegations that: (1) he was terminated 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; 
8 LAWRENCE LEVINE v. MSPB

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 jurisdiction over his appeal. See Garcia v. Dep’t of Homeland 

Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc) (explaining that the petitioner bears the burden of establishing 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 the 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 probationary 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 enclosures. After receiving this response, the Army provided 

Levine with written notice of its final decision to terminate 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 provides [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 limited circumstances. See 5 C.F.R. § 315.803(a) (“The 

agency shall utilize the probationary period as fully as 
 LAWRENCE 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 fully 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