923 F.2d 871
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Robert J. CAIN, Petitioner,v.DEPARTMENT of the NAVY, Respondent.
No. 90-3356.
United States Court of Appeals, Federal Circuit.
Dec. 12, 1990.

Before RICH, PLAGER and CLEVENGER, Circuit Judges.
DECISION
PER CURIAM.


1
Cain appeals the order of the Merit Systems Protection Board (MSPB), Docket No. SF07528910742 (April 11, 1990), denying Cain's petition for review of the MSPB's initial decision, which dismissed Cain's appeal for failure to prosecute.  Cain had filed with the MSPB an appeal which challenged Cain's removal by the Department of the Navy.  We affirm.

OPINION

2
The MSPB can dismiss an appeal if the appellant fails to prosecute that appeal.  5 C.F.R. Sec. 1201.43(b);  Ahlberg v. Dep't of Health & Human Services, 804 F.2d 1238, 1242 (Fed.Cir.1986), cert. denied, 482 U.S. 913 (1987).  Cain's failure to attend the prehearing conference, to contact the MSPB upon discovering that failure, and to respond to the Order to Show Cause supported the MSPB's dismissal for failure to prosecute.


3
Cain's petition for review of the dismissal needed to establish that "[n]ew and material evidence is available that, despite due diligence, was not available when the record closed," or that "[t]he decision ... is based on an erroneous interpretation of statute or regulation."    5 C.F.R. Sec. 1201.115(c).  This Court can set aside the MSPB's decision denying Cain's petition if that decision was:


4
(1) unsupported by substantial evidence;


5
(2) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;  or


6
(3) obtained without procedures required by law, rule, or regulation.


7
5 U.S.C. Sec. 7703(c).  The MSPB's denial of Cain's decision did not violate this standard and must therefore be upheld.

