Genevieve M. Babcock, Petitioner, v. Merit Systems Protection Board, Respondent, 996 F.2d 318 (Fed. Cir. 1993)

DECISION

The Merit Systems Protection Board (MSPB) dismissed as untimely the appeal of petitioner, Genevieve Babcock, from the decision of the Office of Personnel Management (OPM) requiring that she repay $3,817 in annuity benefits erroneously paid to her. Upon her request for reconsideration of OPM's initial decision, that agency affirmed its initial decision. This court affirms the MSPB.

BACKGROUND

The Office of Personnel Management issued its reconsideration decision on February 25, 1992, and advised petitioner that she had a 25-day time limit to file an appeal. The appeal was filed four days' late. Petitioner was then invited to submit evidence showing either that the appeal was timely filed or that good cause existed for a waiver of the filing deadline. She responded that her appeal was filed March 12, 1992. The administrative judge, however, noted that the appeal had a postmark date of March 25 and that it was not received until March 30, 1992. Under the relevant regulation, the postmark date is the filing date. 5 C.F.R. § 1201.4(1) (1992). Nevertheless, the administrative judge reopened the record and allowed petitioner until April 17, 1992, to file evidence and argument showing good cause for a waiver of the filing time limit. She filed nothing further.

On May 22, 1992, the initial decision was issued dismissing the appeal for untimely filing. The decision became final on September 22, 1992, when the MSPB declined review.

In Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (in banc), it is stated:

Litigants before the Board, whether rich or poor ... are obligated to respect the Board, its procedures, including deadlines, and the orders of the Board's judges. The doors of the tribunal are open to all claimants but only on the same terms. This is the essence of due process and equal treatment under the law.

An appellant has the burden to demonstrate that a delay in filing is excusable when advised of the time limit for filing an appeal. Here that advice was ignored and dismissal of a late appeal was within the discretion of the administrative judge. That discretion was not abused and must stand.