Gerardo N. Carolino, Petitioner, v. Merit Systems Protection Board, Respondent, 972 F.2d 1354 (Fed. Cir. 1992)

Gerardo N. Carolino appeals from the November 12, 1991 decision of the Merit Systems Protection Board (Board), Docket No. SE0831910543I1, dismissing Carolino's appeal of an Office of Personnel Management (OPM) decision denying his claim for deferred retirement benefits pursuant to the Civil Service Retirement Act because the Board found that Carolino's appeal was untimely filed without good cause. We affirm.

DISCUSSION

On July 18, 1991, OPM issued a reconsideration decision denying Carolino's request for deferred retirement benefits. OPM informed Carolino that there was a 25-day time limit to appeal the decision to the Board. See 5 C.F.R. § 1201.22 (1991). The last day to file a timely appeal would therefore have been August 12, 1991. Carolino filed his appeal to the Board by letter dated August 15, 1991, three days after the filing deadline. The letter was received by the Board on August 26, 1991.

The Board acknowledged receipt of the appeal but informed Carolino that he would have the burden of establishing timeliness or showing good cause for a waiver of the time limit. Carolino did not submit any explanation regarding the late filing or request a waiver of the time limit. Accordingly, the Board issued its initial decision on November 12, 1991, which became final on December 17, 1991 after Carolino failed to file a petition for review of the initial decision.

We review the Board's decision under a narrow standard, affirming the judgment unless it is arbitrary, capricious, an abuse of discretion, procedurally defective, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Carolino bears the burden to establish good cause for his untimely appeal. 5 C.F.R. § 1201.56(a) (2) (ii) (1991). The Board gave Carolino ample opportunity to show good cause for the untimely filing. After receiving Carolino's untimely appeal, the Board gave Carolino 30 days to show that his appeal was timely or that he had good cause for the delay. Carolino did not respond to that order. The Board then gave Carolino an additional 40 days to submit evidence or argument related to the timeliness issue. Carolino finally responded, asserting merely that he is "old sickly, and a very poor person and knows nothing regarding this appeal...." Under these circumstances, we find no reversible error in the Board's decision, and thus affirm.