               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit


                                         05-3016



                                    GARY D. SMITH,

                                                        Petitioner,

                                             v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.

                           __________________________

                            DECIDED: July 8, 2005
                           __________________________


Before MAYER, RADER, and LINN, Circuit Judges.

PER CURIAM.

       Gary D. Smith appeals the decision of the Merit Systems Protection Board, which

dismissed his petition for review as untimely. Smith v. United States Postal Serv.,

DC3443030826-I-1 (MSPB Aug. 18, 2004).             Because the board did not abuse its

discretion by refusing to excuse Smith’s untimely filing, we affirm.

       Smith’s complaint alleged that the United States Postal Service changed his

assignment without accommodating his disability. The complaint was dismissed based

on Smith’s submission that he was abandoning the complaint because he had not
received a reduction in pay or grade. The administrative judge informed Smith that this

decision would become final unless appealed to the board by November 19, 2003.

       Smith, proceeding pro se, appealed the decision in February 2004, well outside

the 35-day window prescribed by 5 C.F.R. § 1201.114(d). In an attempt to excuse the

delay, Smith alleged that his health had precluded his timely filing; he failed, however, to

submit documentation that corroborated this assertion. The board, after considering the

length of his delay, his unsupported excuse, his lack of due diligence, his pro se status,

and the possible existence of circumstances beyond his control, refused to extend the

filing deadline and dismissed Smith’s appeal as untimely. We discern no error in this

decision. See Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003)

(“[T]he waiver of a regulatory time limit based on a showing of good cause ‘is a matter

committed to the Board’s discretion and that this court will not substitute its own

judgment for that of the Board.’” (quoting Mendoza v. Merit Sys. Prot. Bd., 966 F.2d

650, 653 (Fed. Cir. 1992) (en banc))).




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