                   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
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
