NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3076 JULIO G. PIMENTEL, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Julio G. Pimentel , of Rosharon, Texas, pro se. Michael A. Carney , General Attorney, Office of General Counsel, Merit Systems Protection Board, of Washingt on, DC, for respondent. Of counsel on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3076

JULIO G. PIMENTEL, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Meri t Systems Protection Board in CH0752060239-I-1.

____________________________ DECIDED: April 14, 2008

____________________________ Before LOURIE, RADER, and BRYSON, Circuit Judges

. PER CURIAM. DECISION Julio G. Pimentel appeals from the final decision of the Merit Systems Protection Board (the “Board”) dismissing his petiti on for review as untimely filed. Pimentel v. Office of Personnel Mgmt. , CH0752060239-I-1 (M.S.P.B. September 26, 2007). Because Mr. Pimentel fails to identify any reversible error, we affirm

. BACKGROUND For nineteen years Pimentel was an estate and gift tax attorney for the Internal Revenue Service (“IRS”) in Chicago, Illinois. On December 16, 2005, the IRS removed him for violating a last-chance agreement that he had entered into in 1999. Pimenteltimely appealed his removal. On May 22, 2006, Pimentel and the IRS entered into a settlement agreement in which Pimentel agr eed to withdraw his appeal and immediately resign. In addition, Pimentel agreed not to reapply for employment with the Service and waived his right to pursue any future claims against it. The IRS, in turn, agreed to change Pimentel’s SF-50 to reflect a vol untary resignation, rather than a forced removal. Thereafter, on the same day t hat the settlement agreement was signed, an administrative judge issued an in itial opinion dismissing Pim entel’s appeal with prejudice and entering the settlement agreement into the record. Pim entel was advised that the decision would become final unless a petition fo r review was filed before June 26, 2006. Pimentel did not file a petiti on for review by that date. Ten months later, on May 18, 2007, Pimentel filed a petition for review. In that petition, he claimed that t he IRS had begun offering “early-out” retirement packages to employees in the Chicago estate tax divisi on shortly after his settlement agreement had become final. According to Pimentel, the IRS waited to announce the retirement offer until after Pimentel’s appeal rights were exhaus ted in order to deny him the ability to accept the retirement package. On September 26, 2007, t he Board denied Pimentel’s petition for review as untimely. The Board found t hat Pimentel had failed to establish good cause for his failure to file his petition within the thirty -five day period followi ng the issuance of the initial decision. The Board found that he had not exercised due diligence and therefore refused to grant his motion to waive the time limit. Pimentel timely appealed to this cour t. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

2008-3076 -2-DISCUSSION The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s dec ision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). Genera lly, an appeal from a Board decision “must be filed no later than 30 days after the e ffective date, if any, of the action being appealed, or 30 days after the dat e of receipt of the agency's decision, whichever is later." 5 C.F.R. § 1201.22(b )(1) (2007). "If a party does not submit an appeal within the time set by statute, regulati on, or order of a j udge, it will be dismissed as untimely filed unless a good reason for the delay is shown. " 5 C.F.R. § 1201.22(c).(2007). On appeal, Pimentel argues t hat he was unable to file his appeal within the thirtyday time period following the initial decisi on because he was unaware of the “early-out” retirement packages. In fact, he argues, the retirement offer was announced shortly after the end of the thirty-day window with t he intent of depriving him of the opportunity to accept an early retirement package. T he IRS’s deceptive actions, Pimentel alleges, amount to fraud and therefore s hould be subject to the two-y ear statute of limitations that he contends applies to all fraud claims. Pimentel further claims that he waited ten months following the retirement offer announcem ent to file a petition for review because he did not discover until May 2007 that the retirement packages were being offered on a continual basis.

2008-3076 -3-2008-3076 -4- The government responds that the Boar d properly consider ed the cause of Pimentel’s delay and found t hat such delay was unreasonable. According to the government, the Board was thus within its discretion in refusing to waive the time limit. We agree with the government that the Board did not abus e its discretion in not waiving the time limit. Very simply, Pimentel failed to file his appeal within the required time period. The IRS’s retirement pa ckage and the date of its announcement are irrelevant to that appeal date, which Pimentel let pass. This is not an appeal from a fraud claim, but an appeal from a dismissal for failure to file a timely appeal. While it is within the Board’ s discretion to waive the time limit if an appellant can show good cause for a filing delay, Pimentel has failed to do so here. In attempting to show good cause, Pimentel points to the fa ct that the announcement of the retirement packages occurred after the expiration of the appeal period. While that fact may explain his failure to file a petition for review wit hin the initial thirty-day window, it does not explain why he waited over ten months following the IRS’s announcement to file an appeal. Moreover, Pimentel’s ar gument that he did not know of the continual nature of the IRS’s retirement offer during those t en months does not help him in showing good cause. We fail to see how t he continual nature of the retirement offer affected in any way his ability to file a petition for review. Pimentel has failed to show that he acted with diligence or prudence after learning of t he retirement packages. Denying Pimentel’s appeal as untimely was therefore a proper exercise of the Board’s discretion. Accordingly, because Pimentel fails to identify any reversible error, we affirm

. No costs

.