NOTE: This disposition is nonprecedential.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. 

 Julio G. Pimentel, of Rosharon, Texas, pro se. 

 Michael A. Carney, General Attorney, Office of General Counsel, Merit Systems 

Protection Board, of Washington, DC, for respondent. Of counsel on the brief were 

B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel. 

Appealed from: Merit Systems Protection Board 
 NOTE: This disposition is nonprecedential.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 Merit 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 petition 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. Pimentel 
timely appealed his removal. On May 22, 2006, Pimentel and the IRS entered into a 

settlement agreement in which Pimentel agreed 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 voluntary resignation, rather than a forced 

removal. Thereafter, on the same day that the settlement agreement was signed, an 

administrative judge issued an initial opinion dismissing Pimentel’s appeal with prejudice 

and entering the settlement agreement into the record. Pimentel was advised that the 

decision would become final unless a petition for review was filed before June 26, 2006. 

Pimentel did not file a petition for review by that date. 

 Ten months later, on May 18, 2007, Pimentel filed a petition for review. In that 

petition, he claimed that the IRS had begun offering “early-out” retirement packages to 

employees in the Chicago estate tax division 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 exhausted in order to deny him the ability to 

accept the retirement package. 

 On September 26, 2007, the Board denied Pimentel’s petition for review as 

untimely. The Board found that Pimentel had failed to establish good cause for his 

failure to file his petition within the thirty-five day period following 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 court. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9). 

2008-3076 

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DISCUSSION 

The scope of our review in an appeal from a Board decision is limited. We can 

only set aside the Board’s decision 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). Generally, an appeal from a Board decision 

“must be filed no later than 30 days after the effective date, if any, of the action being 

appealed, or 30 days after the date 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, regulation, or order of a judge, 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 that he was unable to file his appeal within the thirtyday time period following the initial decision 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 the intent of depriving him of the opportunity 

to accept an early retirement package. The IRS’s deceptive actions, Pimentel alleges, 

amount to fraud and therefore should be subject to the two-year statute of limitations 

that he contends applies to all fraud claims. Pimentel further claims that he waited ten 

months following the retirement offer announcement 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. 

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2008-3076 

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The government responds that the Board properly considered the cause of 

Pimentel’s delay and found that 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 abuse 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 package 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 fact 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 within 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 argument that he did not know of the continual nature of 

the IRS’s retirement offer during those ten months does not help him in showing good 

cause. We fail to see how the 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 the 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.