Dominador De La Cruz, Petitioner, v. Merit Systems Protection Board, Respondent, 965 F.2d 1064 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 965 F.2d 1064 (Fed. Cir. 1992)

April 13, 1992

Before NIES, Chief Judge, SKELTON, Senior Circuit Judge, and LOURIE, Circuit Judge.



Dominador De La Cruz petitions for review of a Merit Systems Protection Board decision, Docket No. SE08319110220, dismissing as untimely his petition for review of the Office of Personnel Management's decision denying his application for an annuity. We affirm.


On February 19, 1990, the Office of Personnel Management (OPM) denied Cruz's application for a deferred retirement annuity because OPM was unable to verify that Cruz had been employed in a position covered by the civil service retirement system. On April 19, 1990, OPM denied his application for reconsideration and advised Cruz of the 25-day time period for filing an appeal to the Board. Nine months later, on January 24, 1991, Cruz appealed to the Board. The Administrative Judge (AJ) notified Cruz that his petition was untimely and ordered him to show "good cause" for his late filing. 5 C.F.R. § 1201.22(b). On April 24, 1991, the AJ ruled:

The appellant responded to my Order by letter dated February 28, 1991. He stated in his letter that he received my Order on February 20, 1991, and he addressed the merits of his appeal and designated a representative. He did not explain, however, the more than eight-month delay in filing his appeal, as required by my Order, and he did not offer any reasons which would constitute good cause for waiver of the time limit.

Accordingly, the AJ dismissed the appeal.

On June 14, 1991, Cruz made a request for reconsideration (treated as a petition to the full board) alleging "unavoidable circumstances in the delayance in the handling of mail matters here in the Philippines." The Board denied the petition because it did not meet the criteria for review.

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 Cruz in writing of the 25-day deadline. Upon untimely filing, Cruz was given the opportunity to offer an explanation and he responded only on the merits of his appeal. We discern no abuse of discretion in the Board's dismissal of his appeal or in denying his request for reconsideration (petition for review).