975 F2d 869 Leonor v. Merit Systems Protection Board

975 F.2d 869

Clarita S. LEONOR, Petitioner,

No. 92-3268.

United States Court of Appeals, Federal Circuit.

July 14, 1992.

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before LOURIE, Circuit Judge, BENNETT, Senior Circuit Judge, and RADER, Circuit Judge.



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Clarita S. Leonor seeks review of a Merit Systems Protection Board decision, Docket No. SE08319110407. The Board dismissed Mrs. Leonor's appeal of the Office of Personnel Management's denial of her husband's application for an annuity. This court affirms.



On November 30, 1990, the Office of Personnel Management denied Eduardo A. Leonor's application for an annuity. On February 26, 1991, OPM denied Mr. Leonor's request for reconsideration of his application. OPM's reconsideration decision notified Mr. Leonor of the 25-day time limit for appeals to the Board.


On May 14, 1991, Mrs. Clarita Leonor filed* an appeal with the Board on behalf of her husband. Because Mrs. Leonor stated that her husband was incapacitated, the Board substituted her as the proper party. See 5 C.F.R. § 1201.35 (1992). Because the appeal deadline had passed over two months earlier, OPM requested dismissal.


On June 18, 1991, the Board ordered Mrs. Leonor to show good cause for her untimely filing. Mrs. Leonor did not respond until August 29, 1991. The administrative judge had already dismissed Mrs. Leonor's appeal on August 14, 1991. The Board adopted the administrative judge's decision.


The sole issue before this court is whether the Board abused its discretion by not allowing Mrs. Leonor to waive the time limit for appeal to the Board. This court has stated:


Whether the regulatory time limit for an appeal should be waived in a particular case is a matter committed to the board's discretion and this court will not substitute its own judgment for that of the board.


Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 (Fed.Cir.1982).

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Mrs. Leonor's response to the show cause order, the letter dated August 29, 1991, argued the merits of her case. It showed no good cause for untimely filing. Mrs. Leonor's response itself was over one month late. Mrs. Leonor has presented no evidence of good cause nor of an abuse of discretion by the Board. This court therefore affirms.


An appeal sent by mail is deemed filed on the postmark date of the mailing. See 5 C.F.R. § 1201.4(1)