NOTE: This disposition is nonprecedential 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 dismissed 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 administrative judge found that dismissal was appropriate 

because the charges underlying the agency’s action were 

related to the pending criminal charges. Id. Thus, Nelson’s appeal was dismissed “without prejudice to [Nelson’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. CH0752-08-0811-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 dismissing 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 considered in determining whether good cause exists for excusing 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 explicitly 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 evidence 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 supposedly 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 deadline and (2) dismissing the refiled appeal as untimely. 

AFFIRMED 

COSTS

No costs.