Alejandro F. Alagar, Petitioner, v. Office of Personnel Management, Respondent, 856 F.2d 201 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 856 F.2d 201 (Fed. Cir. 1988) Aug. 1, 1988

Before MAYER and MICHEL, Circuit Judges, and EDWARD D. RE, Chief Judge.* 



The decision of the Merit Systems Protection Board (board), Docket No. SE08318810155 (Jan. 26, 1988), dismissing the appeal of Alejandro F. Alagar as being untimely filed, is affirmed.


Mr. Alagar filed his appeal on November 4, 1987, over 90 days after the Office of Personnel Management (OPM) decision issued on July 7, 1987. An appeal to the board from a reconsideration decision which does not set an effective date must be filed within 25 days of the date of the issuance of the decision. 5 C.F.R. Sec. 1201.22(b) (1987). Untimely filing may be waived upon a showing of good cause by the appellant and, in the absence of demonstrated prejudice to the government, any excuse that is reasonable in light of the particular facts and circumstances should be accepted. Ceja v. United States, 710 F.2d 812, 814 (Fed. Cir. 1983); see generally Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (1980).

In the written OPM reconsideration decision, Mr. Alagar was specifically warned of the 25-day time limit for filing appeals of that decision. However, neither before the board nor in his appeal to this court has Mr. Alagar offered any excuse at all as to why his appeal was not filed until well after the passing of the prescribed period. Without any offered justification, this court is unable to conclude that the administrative judge abused her discretion in finding that the time limit for Mr. Alagar's otherwise untimely appeal should not be waived and that the appeal should be dismissed for lack of jurisdiction. See Turner v. Merit Systems Protection Board, 806 F.2d 241, 246 (Fed. Cir. 1986). In the absence of jurisdiction, neither the board nor this court can consider Mr. Alagar's arguments concerning the merits of his appeal. Therefore, the decision of the board must be affirmed.


The Honorable Edward D. Re, Chief Judge, United States Court of International Trade, sitting by designation