                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3191



                                GILBERT J. ALSTON,

                                                          Petitioner,


                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.

      Gilbert J. Alston, of New York, New York, pro se.

       Stephanie M. Conley, Attorney, Office of the General Counsel, United States
Merit Systems Protection Board, of Washington, DC, for respondent. With her on the
brief were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2007-3191

                                 GILBERT J. ALSTON,

                                                       Petitioner,

                                            v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                       Respondent.

                           __________________________

                            DECIDED: November 13, 2007
                           __________________________

Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

PER CURIAM.

      Gilbert Alston seeks review of a decision of the Merit Systems Protection Board

that became final when the time elapsed for Alston to file a petition for review on

February 16, 2007. Alston v. U.S. Postal Serv., No. NY-0752-06-0047-I-2 (M.S.P.B.

Jan. 12, 2007); see 5 C.F.R. § 1201.113. Because the administrative judge (“AJ”) did

not abuse his discretion in dismissing Alston’s appeal as untimely, we affirm.

      Alston first appealed his removal from the United States Postal Service in

November 2005, but the AJ dismissed that appeal without prejudice to afford Alston the

opportunity to obtain counsel. Alston v. U.S. Postal Serv., No. NY-0752-06-0047-I-1

(M.S.P.B. Jan. 27, 2006). The dismissal order was explicit that Alston could refile the

appeal “no earlier than March 3, 2006, and no later than March 13, 2006.” Id. at 2

(emphasis in original).   Alston did not refile his appeal until September 27, 2006.
Accordingly, in order to avoid dismissal of his appeal as untimely, Alston was required

to show good cause for the delay. 5 C.F.R. § 1201.22(c).

       In response to the AJ’s order to show cause why the appeal should not be

dismissed as untimely, Alston indicated that he no longer had permanent residency and

was occupied by the “need to simply stay alive.” However, as the AJ observed, this

does not explain the delay of over six months in refiling the appeal, particularly because

Alston was able to comply in a timely manner with the show cause order. Alston also

asserts that he only came to understand the need to refile his appeal upon receiving a

demand for payment to the U.S. government in August of 2006, apparently relating to

accrued leave at the position from which he was removed. This does not excuse the

untimeliness of Alston’s September 26, 2006 refiling.        Finally, to the extent Alston

alleges that he was waiting for the agency to set a date for refiling, the AJ did not abuse

his discretion in concluding that this did not constitute good cause in light of the clearly

stated deadline in the dismissal order and the fact that the order did not refer or relate to

any subsequent action to be taken by the agency.

       Accordingly, the AJ’s finding that Alston did not exercise due diligence or

ordinary prudence under the circumstances of this case is supported by substantial

evidence, and the decision not to waive the deadline to refile was not an abuse of

discretion. We affirm.

                                          COSTS

       No costs.




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