concurring and dissenting.
The court today adopts the curious position that a precedential ruling of the full Merit Systems Protection Board can not be reviewed on its merits, when the Board issues a significant ruling of first impression along with a ruling that the appeal from the administrative judge to the full Board was untimely. Thus the panel majority does not reach the merits of the appeal, ignoring the full Board’s published opinion on the merits. This procedure, which removes the decision from appellate scrutiny, is seriously flawed. I respectfully dissent from the ruling that the merits of the Board’s decision are not subject to review.
This case arose because the Federal Deposit Insurance Corporation had withdrawn, with an accusation of wrongdoing, a rent differential allowance that had been granted to Mr. Nelson. He filed a timely appeal to the Board. In an initial decision dated January 26, 1996, the administrative judge determined that Mr. Nelson had not alleged an appealable agency action, on the ground that the discontinuance of a rent differential allowance is not within the Board’s jurisdiction. Mr. Nelson sought review by the full Board on April 14,1995, some six weeks beyond the 36-day time limit. The Board responded in three concurrent ways. The Board (1) dismissed the petition for review as having been untimely filed, explaining that the discovery of additional legal authority did not constitute good cause to waive untimeliness; (2) declined to reopen the appeal on its own motion, holding that no error was made in the administrative judge’s decision on the merits; and (3) reviewed on its merits the ruling of the administrative judge as to the rent differential allowance. Mr. Nelson on this appeal argues both the merits and the issue of timeliness. The agency in its response argues both that the Board correctly held that withdrawal of the rent differential allowance was not within the Board’s jurisdiction, and that the appeal to the full Board was untimely.
Mr. Nelson argues that since the payment by the agency of a rent differential allowance is not discretionary for relocated employees it is a form of “pay,” and its withdrawal is a “reduction in pay” within the meaning of 5 U.S.C. § 7612(4), and therefore within the Board’s jurisdiction. Mr. Nelson cites Fox v. Federal Deposit Insurance Corp., 62 M.S.P.R. 447 (1994), wherein the Board included a rent differential allowance in the “compensation” that was required to be paid to the employee. The full Board, observing that Fox was not cited to the administrative judge and its tardy discovery by Mr. Nelson was not ground for waiving the untimely appeal to the full Board, then discussed and distinguished Fox on its merits:
In Fox, 62 M.S.P.R. at 451, the Board was interpreting the statutory requirements of the Whistleblower Protection Act (WPA) regarding interim relief, by which an agency must afford an employee “pay, compensation, and all other benefits as terms and conditions of employment,” 5 U.S.C. § 7701(b)(2)(B), when it makes a determination not to comply with the interim relief provisions by returning the employee to the workplace. In finding that “compensation” included an RDA in that appeal, we relied on analysis in McLaughlin v. U.S. Postal Service, 55 M.S.P.R. at 197-98, in which we found that “compensation” means something other than “pay.”
Nelson v. FDIC, 68 M.S.P.R. at 3-4. The Board decided the merits of Mr. Nelson’s appeal, distinguishing his case from the facts in Fox:
The appellant in Fox was entitled under the provisions of the WPA to an RDA as “compensation.” That finding does not support a finding that discontinuing the appellant’s RDA in this appeal is a reduction in “pay” and thus an action within the Board’s jurisdiction under 5 U.S.C. § 7512(4).
Nelson v. FDIC, 68 M.S.P.R. at 4. The Board held that “pay” is defined as the rate *1379of basic pay fixed by law or administrative action for the position held by an employee, citing 5 U.S.C. § 7511(a)(4). The Board held that an employee’s rate of basic pay is exclusive of additional pay of any kind, citing 5 C.F.R. § 531.202(k) and McLaughlin v. United States Postal Service, 55 M.S.P.R. 192, 197 (1992). In reviewing the merits the Board cited statute and authority, discussed the difference between compensation and pay, and explained why the withdrawal of the rent differential allowance is not “an action within the Board’s jurisdiction under 5 U.S.C. § 7512(4),” although it is compensation and is available as relief under 5 U.S.C. § 7701(b)(2)(B). Nelson v. FDIC, 68 M.S.P.R. at 4. This is an important distinction of law, apparently of first impression as a Board decision.
The Board declined to reopen the appeal on its own motion, explaining that no error required correction. Thus the Board decided the merits of the issue of the rent differential allowance. The Board did not simply issue an explanation of its ruling of untimeliness.1 In order to reach the merits, the full Board necessarily overcame the barrier of untimeliness.
If, as the panel majority holds, the only issue before the Federal Circuit is the matter of timeliness, then the Board’s ruling with respect to the rent differential allowance is judicially unreviewable. However, this ruling is presented in a published decision, as a decision of first impression and binding effect. The Board published its opinion in the official Reports, and the headnote describes the ease holding as: “discontinuing employee’s rent differential allowance (RDA) was not a reduction in ‘pay’ so as to be an action within Board’s jurisdiction.” Nelson v. FDIC, 68 M.S.P.R. at 1.
Indeed on the majority view of the case he Board’s decision on the merits should now be vacated by this court, not tacitly affirmed. Even if the Board’s statement on the merits is treated as a statement of policy or advice, the Board’s conclusion is reviewable if it is given binding effect. Cf. Pacific Gas & Elec. v. Federal Power Comm’n, 506 F.2d 33, 38-40 (D.C.Cir.1974) (an agency’s general statement of policy is subject to judicial review if it binds the public). It is the obligation of the Federal Circuit to provide, and the right of the petitioner to receive, judicial review.
Undoubtedly the Board could have decided only the question of untimeliness; that would not have required a dispositive opinion by the Board on the rent differential allowance. But the full Board used the occasion of this appeal to decide this substantive issue. Its decision is fully reasoned, supported by authority, was published as a decision on the merits, and is defended by the agency as a decision on the merits. The decision is not insulated from the statutory judicial review process simply because the Board cast its opinion as deciding both untimeliness and the merits.
The Board states in its concluding “Order” that the initial decision “will remain the final decision of . the Board with regard to the dismissal of the appeal for lack of jurisdiction.” The jurisdictional ruling is that the withdrawal of the rent differential allowance is not a reduction in “pay”; in the Board’s words, the finding in Fox v. FDIC “does not support a finding that discontinuing the appellant’s RDA in this appeal is a reduction in ‘pay5 and thus an action within the Board’s jurisdiction under 5 U.S.C. § 7512(4).” Nelson v. FDIC, 68 M.S.P.R. at 4. By deciding the merits2 the Board necessarily waived its *1380objection to the untimeliness of the filing. Thus the merits of the Board’s decision is before us for review.
. The Board usually does not accompany a dismissal for untimeliness with a published opinion on the merits of the substantive issue of the appeal unless the Board reopens the case. A random check of Board decisions on the issue of timeliness of appeal to the full Board from the initial decision of the administrative judge shows that the Board generally does not discuss the merits, but may identify the subject matter of the appeal as background to why the proffered excuse for untimeliness was being rejected. The discussion in the case at bar was unusual in its treatment of the substance of the appeal.
. Other published opinions of the Board which are not to be treated as precedent clearly so indicate. E.g., Rizor v. United States Postal Serv., 68 M.S.P.R. 382, 383 (1995) (“The two Board members cannot agree on the disposition of the petition for review. Accordingly, the initial decision is the final decision of the Merit Systems Protection Board in this appeal. This decision shall not be considered as precedent by the *1380Board in any other case.”); Gussie v. United States Postal Serv., 68 M.S.P.R. 385, 385 (1995) (same). The Board’s opinion in Nelson does not contain a disclaimer of precedential authority. Indeed, the Board decided the merits and published its opinion, confirming the result reached by the administrative judge.