Wilfredo Torres v. Merit Systems Proection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this
disposition is not citable as precedent. It is a
public record.
United States Court of Appeals for the Federal Circuit
04-3055
WILFREDO TORRES,
Petitioner,
v.
MERIT SYSTEMS PROECTION BOARD,
Respondent.
__________________________
DECIDED: November 18, 2004
__________________________
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge and LINN, Circuit
Judge.
PER CURIAM.
This is an unusual circumstance where Mr. Torres had two separate and distinct
cases pending before the Merit System Protection Board (“Board”). He believed he was
appealing one case, Torres v. Dep’t of Treasury, AT-0752-03-0155-I-1 (MSPB Initial
Decision Jan. 23, 2003), and in actuality, he appealed the other, Torres v. Office of
Pers. Mgmt., AT-0845-02-0431-I-1 (MSPB Sept. 22, 2003).
Mr. Torres appears to believe that he is appealing the case relating to his
involuntary retirement and constructive removal claim against the Department of

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Treasury. The case was dismissed for lack of jurisdiction. Torres,
AT-0752-03-0155-I-1, slip op. at 1. However, he appealed the Board’s dismissal for
untimeliness of his appeal for denial of a pension overpayment waiver against the Office
of Personnel Management. Torres, AT-0845-02-0431-I-1. Mr. Torres, therefore,
appealed the wrong case. The respondent noted that Mr. Torres did not acknowledge
the timeliness issue in his arguments, but did not advise this Court of Mr. Torres’s
failure to appeal the appropriate case.
In spite of the erroneous filing by Mr. Torres, we have reviewed the appealed
matter relating to the Board’s dismissal for untimeliness relative to the pension
overpayment. Because Mr. Torres has failed to demonstrate that the Board’s decision
was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law; obtained without procedures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence, this Court affirms the Board’s
decision.
04-3055 2

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