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Olivares v. Merit Systems Protection Bd.

Decided: February 23, 1994.

BENJAMIN V. OLIVARES, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.



Appealed from: Merit Systems Protection Board

Before Archer, Mayer, and Plager, Circuit Judges.

Archer

ARCHER, Circuit Judge.

Benjamin V. Olivares appeals from a decision of the Merit Systems Protection Board (MSPB or board), No. SE-0831-91-0497-I-1 (June 28, 1993), dismissing as untimely his petition for review filed with the board. We affirm.

I.

By reconsideration decision dated July 3, 1991, the Office of Personnel Management (OPM) denied Olivares an annuity under the Civil Service Retirement System (CSRS). On July 18, 1991, Olivares appealed the OPM's decision to the MSPB. In an initial decision dated November 7, 1991, an administrative Judge of the MSPB affirmed the OPM's reconsideration decision. The initial decision notified Olivares that it would "become final on December 11, 1991, unless a petition for review [was] filed by that date or the Board reopened the case on its own motion." The initial decision also notified Olivares that any appeal from the MSPB's final decision to this court, in order to be timely, must be received by this court "no later than 30 calendar days after the date the initial decision becomes final."

On February 10, 1993, about fourteen months after the initial decision became final, Olivares filed a petition for review with the MSPB in which he challenged the merits of the initial decision. In response to an order by the MSPB to show good cause why the petition should not be dismissed for untimeliness, Olivares claimed that on November 25, 1991, he had, through his representative, mistakenly forwarded a letter for reconsideration of the MSPB's initial decision to the Office of Personnel Management's "Reconsideration Staff."

In a decision dated June 28, 1993, the MSPB found that Olivares failed to demonstrate good cause for his delay in filing the petition for review, refused to grant Olivares an extension of time for filing the petition, and dismissed the petition for review as untimely filed. The MSPB ordered that the initial decision would remain the final decision of the board. Olivares timely appealed the MSPB's dismissal decision to this court.

II.

Olivares initially argues on appeal that he was entitled to an annuity under the CSRS and that the MSPB erred in affirming the decision of the OPM denying him the annuity. In response the MSPB contends that this court has no jurisdiction to review the initial decision of the administrative Judge on the merits, and that the only issue in this appeal is whether the board properly dismissed the petition for review as untimely filed. Thus, the threshold issue we must address is the scope of our review in this appeal.

In order for a decision of the MSPB to be timely appealed to this court, the appeal "must be filed within 30 days after the date the petitioner received notice of the final . . . decision of the Board." 5 U.S.C. § 7703(b)(1) (1988). Under MSPB regulation, an initial decision of an administrative Judge becomes the final decision of the board 35 days after issuance of the initial decision, 5 C.F.R. § 1201.113 (1993), unless (1) a party files a petition for review with the board within the 35 days, Id. § 1201.113(a); (2) the board reopens the case on its own motion, id.; or (3) the board grants a motion for an extension of time to file for good cause shown, id. § 1201.113(d).*fn1

After the initial decision of an administrative Judge becomes the final decision of the board, the board may still permit a petition for review to be filed. Id. § 1201.114(f). In such case, the board requires the petition to be accompanied by a motion for an extension of time for filing which shows good cause for the untimeliness. Id. The motion must contain a sworn statement or affidavit including the reasons the petitioner failed to request a filing extension before the 35-day deadline and a "specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence." Id.*fn2

The untimely submission of a petition for review and motion for an extension of time to the MSPB does not prevent the initial decision of the administrative Judge from remaining the final decision of the board. See 5 U.S.C. § 7701(e)(1) (1988). Thus, the untimely submission of a petition for review and motion for an extension of time to the MSPB does not stop the running of the 30-day statutory time limit in which to file an appeal to this court.*fn3 See also P. Broida, A Guide to Merit Systems Protection Board Law & Practice 662 (10th ed. 1993) (hereinafter "Broida").

In this case, the initial decision of the administrative Judge affirming the reconsideration decision of the OPM denying Olivares an annuity became the final decision of the MSPB on December 11, 1991, when Olivares failed to file a petition for review with the board and the board had not reopened the case on its own motion. Olivares first filed his appeal to this court well after 30 days after this final decision of the board. Therefore, Olivares did not timely appeal to this court the final decision of the board that affirmed the ...


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