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Armstrong v. Dep't of the Treasury

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Before MICHEL, Chief Judge, PLAGER, and LINN, Circuit Judges.

William Armstrong filed an untimely petition for review with the Merit Systems Protection Board (MSPB), seeking review of the Administrative Judge’s (AJ’s) decision dismissing his case under a settlement agreement. The MSPB declined to decide Armstrong’s petition for review, finding that, because Armstrong’s new evidence of fraud in the procurement of the agreement was insufficient to render the agreement invalid, it would not excuse the untimeliness of his petition. Because the MSPB improperly conflated the issue of timeliness with the ultimate decision on the merits of Armstrong’s claim, we vacate the MSPB’s decision on the petition for review, and we remand for further proceedings to determine whether the MSPB should waive its timeliness requirement to permit Armstrong’s case to be decided on the merits.

The MSPB also held that Armstrong abandoned any appeal from the AJ’s separate decision that Armstrong’s employing agency, the Treasury Inspector General for Tax Administration (TIGTA), had not breached the settlement agreement. Because we agree with the MSPB that Armstrong abandoned the appeal of that decision, we affirm the MSPB with respect to its compliance decision.

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