Felix S. Gaitan, Petitioner, v. Merit Systems Protection Board, Respondent, 972 F.2d 1354 (Fed. Cir. 1992)

Felix S. Gaitan petitions for review of a Merit Systems Protection Board decision, Docket No. SE08319010558, dismissing as untimely his appeal of the Office of Personnel Management's (OPM) decision on reconsideration denying his application for an annuity. We affirm.

DISCUSSION

On May 16, 1990, OPM denied Gaitan's request for reconsideration of its denial of his application for a deferred retirement annuity. OPM advised Gaitan of the 25-day time period for filing an appeal to the Board and provided him with instructions for filing an appeal. On approximately August 13, 1990, the Board's headquarters in Washington, D.C. received a letter from Gaitan dated May 31, 1990. The envelope in which Gaitan sent the letter bore no stamp or postmark. The letter was addressed to "The Director, Regional Office, Merit System Protection Board, Seatile [sic] Regional Office, Washington, D.C. 18174-1001." The correct address of the Board's Seattle Regional Office is "Seattle, WA 98174." The Board's D.C. office forwarded Gaitan's letter to the Seattle Regional Office in a separate envelope. The envelope forwarding Gaitan's letter bore a postmark of August 13, 1990.

The Administrative Judge (AJ) treated Gaitan's letter as a notice of appeal filed on August 13, 1990, more than two months after the 25-day time limit. On September 7, 1990, the AJ notified Gaitan that his appeal was untimely and ordered him to show "good cause" for the late filing within 30 days. 5 C.F.R. § 1201.22(b). On December 11, 1990, the AJ ruled:

I advised the appellant that his submission "must be filed within 30 days of the date of this Order" and that the record on the issue of timeliness would close in 60 days. In his responses to my Show Cause Order, the appellant addressed the merits of his case, however, the appellant provided no input concerning the issue of timeliness prior to the close of the record.

Accordingly, the AJ dismissed the appeal.¹ 

Gaitan petitioned the Board for review. Although the petition was untimely, the Board waived the time limit and thereafter denied the petition because it did not meet the criteria for review. 5 C.F.R. § 1201.115.

Even though Gaitan's nonpostmarked letter was dated within the required time period, this is not sufficient basis for us to conclude that the Board abused its discretion. 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 Gaitan in writing of the 25-day deadline. Upon untimely filing, Gaitan 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.