       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  REX T. NELSON,
                     Petitioner,
                          v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3152
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. CH0752080811-I-2.
              ___________________________

              Decided: January 13, 2011
             ___________________________

   REX T. NELSON, Benton Harbor, Michigan, pro se.

   SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Borad, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
              __________________________

     Before LINN, SCHALL, and DYK Circuit Judges.
NELSON   v. MSPB                                           2


PER CURIAM.
    Rex T. Nelson (“Nelson”) petitions for review of a final
order of the Merit Systems Protection Board (“Board”);
the Board dismissed his appeal as untimely. Nelson v.
U.S. Postal Serv., 113 M.S.P.R. 644 (2010) [hereinafter
Final Order II]. We affirm.
                       BACKGROUND
     Nelson was removed from his position with the United
States Postal Service for failure to properly record and
handle window cash transactions. Nelson filed an initial
appeal of his removal with the Board, which was dis-
missed without prejudice. Nelson v. U.S. Postal Serv., No.
CH-0752-08-0811-I-1, slip op. at 3 (M.S.P.B. Nov. 13,
2008) [hereinafter Initial Decision I]. At the time of his
initial appeal, criminal charges were pending against
Nelson for the embezzlement of postal funds. The agency
filed a “motion to dismiss [the] appeal without prejudice
to be refiled within six months pursuant to pending
criminal charges against [Nelson].” Id. at 2. The admin-
istrative judge found that dismissal was appropriate
because the charges underlying the agency’s action were
related to the pending criminal charges. Id. Thus, Nel-
son’s appeal was dismissed “without prejudice to [Nel-
son’s] right to refile his appeal.” Id. at 3. As requested by
the agency, the administrative judge set the deadline for
refiling as the close of business on May 13, 2009, six
months from the date of the initial decision. Id. In a
footnote, the administrative judge specifically warned
that any “[f]ailure to refile this appeal by that date will
result in a finding that [Nelson] has waived his right to
pursue the issues raised by the appeal, absent a showing
of good cause for any filing delay.” Id. at 3 n.1. Nelson
petitioned for review of the initial decision dismissing his
appeal, arguing that the appeal should be permitted to
3                                             NELSON   v. MSPB


continue despite the ongoing criminal proceedings. In a
final order dated March 11, 2009, the Board denied the
petition for review. Nelson v. U.S. Postal Serv., No. CH-
0752-08-0811-I-1, slip op. at 2 (M.S.P.B. Mar. 11, 2009)
[hereinafter Final Order I]. Nelson pled guilty to the
pending criminal charges on March 13, 2009, and he was
sentenced on July 31, 2009. Final Order II at 646.
    Thereafter, on September 10, 2009, Nelson refiled his
removal appeal with the Board. The administrative judge
noted that Nelson had failed to refile his appeal by the
May 13, 2009, deadline set forth in the decision dismiss-
ing his appeal without prejudice and found that he failed
to show good cause for waiving the deadline. Nelson v.
U.S. Postal Serv., No. CH-0752-08-0811-I-2, slip op. at 3
(M.S.P.B. Oct. 8, 2009) [hereinafter Initial Decision II].
As a result, the administrative judge issued an initial
decision dismissing Nelson’s refiled appeal as untimely.
Id. at 3. In a final order, the Board reopened the case and
dismissed the refiled appeal as untimely. Final Order II,
at 645.
                        DISCUSSION
     “If a party does not submit an appeal within the time
set by statute, regulation, or order of a judge, it will be
dismissed as untimely filed unless a good reason for the
delay is shown.” 5 C.F.R. § 1201.22(c). The waiver of a
filing deadline based on a showing of good cause “is a
matter committed to the 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).
    The Board has identified several factors to be consid-
ered in determining whether good cause exists for excus-
ing the untimeliness of a refiled appeal in cases of this
nature: (1) “[t]he appellant's pro se status;” (2) the “timely
NELSON   v. MSPB                                          4


filing of the initial appeal;” (3) the appellant’s “intent
throughout the proceedings to file an appeal;” (4) the
length of “delay in refiling, and any confusion [regarding
the deadline];” (5) the “number of dismissals without
prejudice;” (6) the arbitrariness of the refiling deadline;
(7) “the agency's failure to object to the dismissal without
prejudice;” and (8) “the lack of prejudice to the agency in
allowing the refiled appeal.” Gaddy v. Dep’t of the Navy,
100 M.S.P.R. 485, 489 (2005). Here the Board properly
considered these factors, noting that Nelson is a pro se
appellant who timely filed his initial appeal, that “his
appeal was previously dismissed without prejudice only
once and at the agency’s request,” and that “there is no
apparent prejudice to the agency in allowing the refiled
appeal.” Final Order II at 648. Nonetheless, the Board
concluded, that “the record does not otherwise support a
finding that [Nelson] established good cause to excuse his
untimely refiling.” Id. The Board noted that the initial
decision dismissing the appeal without prejudice explic-
itly informed Nelson that his appeal must be refiled by
May 13, 2009, and warned that, absent a showing of good
cause, any failure to refile by this date would result in a
waiver of Nelson’s right to appeal. Id. Further, the Board
noted that the refiling deadline “was not arbitrary, but
based on the agency’s estimate of when the criminal
proceedings would be concluded.” Id. The agency also
noted that the delay in filing was “hardly minimal”—
Nelson refiled his appeal 120 days after the deadline set
forth in the initial decision dismissing the appeal without
prejudice. Id.
    Nelson explains the delay in refiling by claiming that
he believed he had either six months from the Board’s
final decision or sixty days from the end of his criminal
case to refile his appeal. However, he provides no evi-
dence to support this belief other than the bare contention
5                                           NELSON   v. MSPB


that he was “acting on responses from the MSPB Central
Regional Office out of Chicago on what [he] should do.”
Petitioner’s Br., Answer to Questions 2, 4, and 5. Nelson
claims to have corresponded via e-mal with the MSPB
Central Regional Office and that he acted in accordance
with the instructions he received. But Nelson did not
submit evidence as to the specific instruction he suppos-
edly received or the name of the individual with whom he
communicated.
    Accordingly, we conclude that the Board did not abuse
its discretion by (1) declining to waive the refiling dead-
line and (2) dismissing the refiled appeal as untimely.
                      AFFIRMED
                          COSTS
    No costs.
