Federico M. Melicado, Petitioner, v. Office of Personnel Management, Respondent, 968 F.2d 1227 (Fed. Cir. 1992)

DECISION

Federico M. Melicado petitions for review of a Merit Systems Protection Board decision, Docket No. SE08319110323, dismissing his petition for review as untimely. We affirm.

DISCUSSION

On June 1, 1989, Melicado submitted an application to the Office of Personnel Management (OPM) for a deferred retirement annuity. Melicado's application was denied because OPM was unable to verify that Melicado had been employed in a position covered by the civil service retirement system. On November 14, 1989, OPM denied his application for reconsideration and advised Melicado of the 25-day time period for filing an appeal to the Board. Sixteen months later, on March 30, 1991, Melicado appealed to the Board. The Administrative Judge (AJ) advised Melicado that his petition was untimely and afforded him an opportunity to show "good cause" for his late filing. 5 C.F.R. § 1201.22(b). The AJ stated:

Although the appellant designated a representative in his appeal, the representative did not respond. The appellant responded. He stated that his representative had already given up her possession (sic), because she did not answer. He said that she told him that she could not represent him anymore. He stated that he did not have a lawyer to help him solve his problem "because my lawyer is very lazy and bad." He acknowledged that neither his representative or his lawyer followed the Board's procedures.

The AJ determined that Melicado's explanation did not show that the delay was excusable as he was "responsible for the error of his chosen representative."

The Board has broad discretion to decide whether to waive the time for appeal. Womack v. Merit Sys. Protection Bd., 798 F.2d 453, 456 (Fed. Cir. 1986). Here, OPM advised Melicado in writing of the 25-day deadline and Melicado was given the opportunity to offer an explanation for his untimely filing. In the Board's view, Melicado's explanation did not establish good cause for the 16-month delay in appealing to the Board. We discern no error in the Board's dismissal.