Gonzalo S. Valenzuela, Petitioner, v. Department of Veterans Affairs, Respondent, 983 F.2d 1088 (Fed. Cir. 1992)

Gonzalo S. Valenzuela appeals the decision of the Merit Systems Protection Board, holding that his appeal was untimely filed. Valenzuela v. Dep't of Veterans Affairs, No. SF0752911017-I-1 (MSPB June 2, 1992). We affirm.

Mr. Valenzuela resigned from his position of Housekeeping Aid at the VA Medical Center in West Los Angeles in May of 1986. He gave the following reason for his resignation: "Personal, Dr. Moore refused to put me back to work, due to back problem and no light duty was available." In September of 1991, Mr. Valenzuela filed an appeal to the Board stating that his resignation was involuntary.

The administrative judge dismissed the appeal, finding that Mr. Valenzuela had not shown good cause for delaying for over five years. Mr. Valenzuela maintained that he was confused and did not know what to do. He stated that he was not advised of a right to appeal to the Board. The administrative judge held that, under the particular circumstances that prevailed, Mr. Valenzuela did not exercise ordinary diligence or prudence in apprising himself of his appeal rights and seeking review.

On appeal to this court Mr. Valenzuela does not discuss his reasons explaining the delay. Our appellate review is limited to the timeliness issue, for the Board did not reach the question of whether the resignation was voluntary.

The Board's determination that the appeal was untimely is supported by substantial evidence, and the refusal to waive the untimeliness is within tolerable limits of discretion. 5 U.S.C. § 7703(c). Thus the decision must be affirmed.