NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RONALD NEAL BATDORF,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2014-3080

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-11-0461-I-1.

______________________ 

Decided: September 11, 2014

______________________ 

RONALD NEAL BATDORF, of Virginia Beach, Virginia, 

pro se. 

KATRINA LEDERER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief was BRYAN G.

POLISUK, General Counsel. 

______________________ 

Before PROST, Chief Judge, NEWMAN and REYNA, Circuit 

Judges.
2 BATDORF v. MSPB

PER CURIAM. 

Ronald Neal Batdorf seeks review of a decision of the 

Merit Systems Protection Board (“Board”) dismissing his 

petition for review as untimely filed. See Batdorf v. Dep’t 

of Defense, No. DC-0752-11-0461-I-1 (M.S.P.B. Jan. 16, 

2014). Because Mr. Batdorf has failed to show that the 

Board’s dismissal of his petition for review was arbitrary, 

capricious, or otherwise not in accordance with the law, 

we affirm.

BACKGROUND

Mr. Batdorf worked for the Department of Defense 

(“DOD”) as an Operations Research Analyst. Prior to 

June 1, 2010, the DOD’s employees were classified under 

the National Security Personnel System pay scale. In 

June 2010, however, the DOD converted all of its employees to the General Schedule pay scale. See National 

Defense Authorization Act for Fiscal Year 2010, Pub. L. 

No. 111-84, 123 Stat. 2190, 2498. Mr. Batdorf was converted to a GS-14 grade.

On March 24, 2011, Mr. Batdorf filed an appeal with 

the Board, alleging that he should have been placed in a 

GS-15 position. After the DOD filed a motion to dismiss, 

the administrative judge issued an order noting both that 

Mr. Batdorf had not alleged any loss in pay as a result of 

the DOD’s action and that the Board does not have jurisdiction over reduction-in-rank appeals. The order also 

stated that Mr. Batdorf’s appeal was untimely; it requested Mr. Batdorf to file evidence and argument to prove 

that the matter was within the Board’s jurisdiction and 

timely filed. 

On May 6, 2011, Mr. Batdorf withdrew his appeal, 

stating that he wished to pursue other options with his 

local command. The administrative judge then issued an 

Initial Decision on May 10, 2011, dismissing Mr. Batdorf’s

appeal. The Initial Decision also advised Mr. Batdorf of 
BATDORF v. MSPB 3

the procedures and deadline for filing a petition for review, and it became the Board’s Final Decision on June 

14, 2011. 

On September 18, 2013, Mr. Batdorf filed a petition 

for review of his case. In this petition, Mr. Batdorf alleged that the administrative judge had “persuaded/advised” him to withdraw his Board appeal more than 

two years ago and pursue an internal solution within the 

DOD instead since reduction-in-rank appeals are not 

within the Board’s jurisdiction. Mr. Batdorf also argued 

that he had discovered new evidence after the time period 

for filing had elapsed. On October 17, 2013, Mr. Batdorf

further filed a motion to waive the time limit for good 

cause and motion to reopen, where he stated that he had 

pursued an administrative solution to his complaint, but 

that did not lead to a resolution of the matter. He also 

stated that only after exhausting that option did he 

consult with an attorney, who advised him to seek to 

reopen his Board appeal.

On January 16, 2014, the Board issued a Final Order 

dismissing Mr. Batdorf’s petition for review as untimely. 

The Board found that Mr. Batdorf had filed his petition 

for review more than two years after the date of the 

Initial Decision and had failed to show he exercised due 

diligence or ordinary prudence given the circumstances of 

his case. For example, the Board noted that Mr. Batdorf 

alleged that he discovered new and material evidence on 

April 16, 2013, but he did not file his petition for review 

until September 18, 2013. Mr. Batdorf now appeals the 

Board’s dismissal of his petition for review. 

DISCUSSION

Under the Board’s regulations, a petition for review 

must be filed within thirty-five days of the issuance of an 

Initial Decision, or, if the petitioner shows that the Initial 

Decision was first received more than five days after the 

date of issuance, it must be filed within thirty days after 
4 BATDORF v. MSPB

the date the petitioner or his representative received the 

Initial Decision. 5 C.F.R. § 1201.114(e). However, the 

Board will waive the time limit upon a showing of good 

cause. 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(g).

The petitioner carries the burden to show, by preponderant evidence, that good cause existed for the delay. 

Williams v. Office of Pers. Mgmt., 71 M.S.P.R. 597, 601 

(1996). To establish good cause, the petitioner “need not 

show that it was impossible to file timely, only that the 

delay was excusable under the circumstances where 

diligence or ordinary prudence had been exercised.” 

Phillips v. U.S. Postal Serv., 695 F.2d 1389, 1391 (Fed.

Cir. 1982). 

We must affirm the Board’s decision to deny a good 

cause waiver of a filing deadline unless the decision 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 will not substitute our own judgment for that of the Board in determining whether the 

regulatory time limit for an appeal should be waived 

based upon a showing of good cause. Mendoza v. Merit 

Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en 

banc). 

In this case, Mr. Batdorf requests a good cause waiver 

for two reasons. First, Mr. Batdorf argues that he demonstrated to the Board that he exercised due diligence from 

April 16, 2013, when he received the new evidence, to 

September 18, 2013, when he filed his petition for review. 

He provided a timeline of meetings, e-mails, and letters 

he allegedly sent to various persons during the time 

period. The Government argues that, while this may 

evidence diligence in seeking an administrative resolution, Mr. Batdorf’s proffered series of events fails to 
BATDORF v. MSPB 5

demonstrate that Mr. Batdorf exercised due diligence in 

seeking to reopen his appeal. 

In view of the Board’s evaluation of these considerations, we conclude that nothing in the Board’s dismissal of 

Mr. Batdorf’s petition for review can be characterized as 

arbitrary, capricious, or otherwise not in accordance with 

the law. The burden was on Mr. Batdorf to show that he 

was diligent from April 16, 2013, the date he received the 

new evidence, until September 18, 2013, the date he filed 

his petition for review. We note, however, that there are 

several noticeable gaps in Mr. Batdorf’s alleged timeline. 

For example, we fail to see how pursuing an Inspector 

General investigation for almost two months shows 

diligence in seeking to reopen an appeal with the Board. 

And, in any event, Mr. Batdorf has failed to adequately 

explain why he waited more than two months from when 

he was advised by the Joint Staff Inspector General to file 

with the Board to when he actually filed his petition. 

Next, Mr. Batdorf argues that his prior withdrawal of 

his appeal was essentially invalid, as he never would have 

withdrawn his appeal if not for the administrative judge’s 

advice. The Government argues that his withdrawal of 

the appeal was an act of finality. Cason v. Dep’t of the 

Army, 118 M.S.P.R. 58, ¶ 5 (2012). And a withdrawn 

appeal will typically not be reinstated in the absence of 

unusual circumstances, such as misinformation or new 

and material evidence. Id. According to the Government, 

Mr. Batdorf has not established such an unusual circumstance, and he relies only on allegations regarding what 

the administrative judge told him. 

We again agree with the Government. Even assuming that the administrative judge advised Mr. Batdorf

that he was likely to find that the Board did not have 

jurisdiction over the appeal, Mr. Batdorf has not alleged 

that the advice was misleading. In fact, the administrative judge made similar statements in the Order to Show 
6 BATDORF v. MSPB

Cause, which explained that reduction-in-rank appeals 

are not within the Board’s jurisdiction. Mr. Batdorf has 

also not alleged that the administrative judge assured 

him of a favorable outcome if he withdrew his appeal; the 

administrative judge merely indicated that he did not 

believe the Board had jurisdiction to hear the appeal and 

offered an alternative course of action. We conclude that 

the administrative judge’s statements also do not excuse 

Mr. Batdorf’s late filing.

CONCLUSION

For the foregoing reasons, we conclude that Mr. 

Batdorf has failed show that the Board abused its discretion in dismissing his petition for review as untimely. 

Therefore, we affirm the Board’s Final Order. 

AFFIRMED

COSTS

Each party shall bear its own costs.