NOTE: This disposition is nonprecedential.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 G eneral Counsel, United States Merit Systems Protection Board, of Washin gton, 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 Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential.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 decisi on of the Merit Systems Protection Board that became final when the time elapsed for Alston to file a pet ition 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 t he administrative judge (“AJ”) did not abuse his discretion in dismissi ng Alston’s appeal as untimely, we affirm

. Alston first appealed his removal from t he United States Postal Service in November 2005, but the AJ dism issed that appeal with out 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 ex plicit 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). Al ston did not refile his appeal until September 27, 2006.2007-3191 2 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 si mply stay alive.” However, as the AJ observed, this does not explain the delay of ov er 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. Fi nally, 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 c ause in light of the clearly stated deadline in the dismissal or der 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 Alst on did not exercise due diligence or ordinary prudence under the circ umstances of this case is supported by substantial evidence, and the decision not to waive t he deadline to refile was not an abuse of discretion. We affirm. COSTS No costs.