The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH E. MUCHA, DOCKET NUMBER
Appellant, DE-0831-14-0392-I-1
v.
OFFICE OF PERSONNEL DATE: February 3, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Sharon A. Herberger, Mesa, Arizona, for the appellant.
Patrick Jennings, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) that
dismissed his request for reconsideration as untimely filed. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 OPM issued an initial decision on February 11, 2013, denying the
appellant’s request to provide survivor annuity benefits to his spouse because he
had not notified the agency of an election for a reduced annuity with a survivor
benefit within the 2-year time limit. Initial Appeal File (IAF), Tab 6 at 9. OPM
notified the appellant that he must file a request for reconsideration within
30 days of the date of the initial decision letter. Id. The appellant submitted a
request for reconsideration, postmarked on June 11, 2013, which acknowledged
receipt of the initial decision via mail in February but provided no explanation for
his delayed response. Id. at 7-8. OPM dismissed the request as untimely, noting
that the appellant had not provided sufficient argument or evidence justifying an
extension of the time limit. Id. at 5.
¶3 The appellant filed an appeal with the Board, stating that he has a
neurodegenerative disease but providing no argument explaining his untimely
request for reconsideration. IAF, Tab 1 at 1-2, 5. The administrative judge
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notified the appellant of the applicable regulations regarding timely requests for
reconsideration and ordered the appellant to respond regarding his apparent
untimely action before OPM. IAF, Tab 8 at 1. The appellant responded by
arguing the merits of his reconsideration request without addressing the
timeliness issue. IAF, Tab 9. Based on the written record, the administrative
judge affirmed OPM’s decision dismissing the request for reconsideration as
untimely. IAF, Tab 10, Initial Decision (ID) at 1. The administrative judge
found that the appellant had identified no basis for granting a waiver of the time
limit and had provided no evidence indicating he was unaware of the time limit or
prevented by circumstances beyond his control from making a timely request. ID
at 3-5. The administrative judge found that none of the evidence presented by the
appellant on appeal, including arguments concerning events that occurred after
his untimely filing of a request for reconsideration, provided sufficient
explanation for his untimeliness. ID at 5-7. The appellant has filed a petition for
review, providing evidence concerning the merits of his request for
reconsideration, but again failing to address the timeliness issue. Petition for
Review (PFR) File, Tab 1. 2
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A request for reconsideration of an OPM initial decision must be received
by OPM within 30 calendar days of the date of the initial decision. 5 C.F.R.
§ 831.109(e)(1). OPM has discretion to extend the time limit for filing a request
for reconsideration when the individual shows that he was not notified of the time
limit and was not otherwise aware of it, or that circumstances beyond his control
prevented him from making the request within the time limit. Azarkhish v. Office
2
On January 13, 2015, the Clerk of the Board received from the appellant a “Request
for Leave to File Supplemental and Additional Pleadin g.” PFR File, Tab 6. We
GRANT the appellant’s motion and have reviewed the material that the appellant
submitted with his motion. We find, however, that the appellant’s argument and
evidence contained therein do not change the outcome of this matter.
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of Personnel Management, 915 F.2d 675, 677 (Fed. Cir. 1990); 5 C.F.R.
§ 831.109(e)(2). If the appellant fails to make this showing, the issue of whether
OPM was unreasonable or abused its discretion in denying his untimely request
for reconsideration is not reached. Azarkhish, 915 F.2d at 678; Davis v. Office of
Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006).
¶5 The administrative judge correctly found that the appellant did not show
that he was not aware of the time limit or that he was prevented by circumstances
beyond his control from filing a timely request for reconsideration. ID at 4-6.
The appellant has failed to address his untimely request for reconsideration on
appeal or review. The appellant has not disputed the clear evidence that he
mailed his request on June 11, 2013, about 3 months after OPM’s regulatory time
limit had elapsed. See IAF, Tab 6 at 7-8; see also ID at 3. His reconsideration
request acknowledged receipt of the initial decision in February 2013, which
provided notice of the time limit. IAF, Tab 6 at 7-9. Thus, the administrative
judge correctly found that the appellant was aware of the time limit. ID at 4.
¶6 The appellant has made no argument that he was prevented by
circumstances beyond his control from making the request within the required
time limit. Although the appellant has generally referred to an alleged
neurodegenerative disease, he has provided no medical evidence and made no
specific argument that his medical condition affected his ability to timely file his
request for reconsideration. See IAF, Tab 1 at 5, Tab 9; see also PFR File, Tab 1
at 7-8. The administrative judge reviewed the appellant’s statements to the
Board, including assertions concerning a “government shut down” that occurred
after his untimely filing of a request for reconsideration and OPM’s alleged
advice regarding the appellant’s marital status, but properly found that none of
the evidence provided sufficient explanation for his untimeliness. ID at 5-7.
Thus, we find that, because the record evidence supports the administrative
judge’s findings that the appellant was aware of the time limit and that no
circumstances beyond his control prevented him from filing a timely request for
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reconsideration, “under the regulation OPM could not have been found to have
abused its discretion in refusing reconsideration.” See Azarkhish, 915 F.2d
at 676.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.