Harris v. Merit Systems Protection Board , 565 F. App'x 890 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LOUIS HARRIS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3056
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-13-0026-I-1.
______________________
Decided: May 9, 2014
______________________
LOUIS HARRIS, of Palmdale, California, pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
2 HARRIS v. MSPB
PER CURIAM.
Petitioner Louis Harris (“Harris”) sought annuity
benefits for his federal employment under the Civil Ser-
vice Retirement System. The Office of Personnel Man-
agement (“OPM”) concluded that Harris had forfeited his
annuity benefits by previously requesting, and accepting,
refunds of his retirement deductions. Harris appealed
OPM’s decision to the Merit Systems Protection Board
(“Board”), which dismissed his appeal as untimely. Be-
cause Harris’s appeal was untimely and he has not shown
that a good cause existed for the delay, we affirm the
Board’s dismissal.
BACKGROUND
Harris had three periods of federal employment.
First, Harris worked for the Department of the Air Force
from April 5, 1956 until February 21, 1960. Next, Harris
worked for the Veteran’s Administration from August 4,
1961 until July 10, 1965. Finally, Harris worked for the
United States Postal Service from September 12, 1966
until May 18, 1979. After each of these periods of em-
ployment, Harris filed an application for refund of retire-
ment deductions. The application Harris used to request
each refund, Standard Form 2820, states: “if you have
more than five years of service you may be entitled to
annuity rights which will be forfeited by payment of this
refund unless you are later reemployed subject to the
Civil Service Retirement law.” Respondent’s App’x at 40
(emphasis added). Each application was granted and
Harris received retirement deduction refunds of $1,214.36
in 1960, $1,011.02 in 1965, and $8,802.69 in 1979.
OPM found that, based upon the receipt of these
refunds, Harris had forfeited his right to annuity benefits.
In the letter that denied Harris’s annuity request, OPM
outlined Harris’s right to appeal, noting that “an appeal
must be filed within 30 calendar days after the date of
this decision, or 30 days after receipt of this decision,
HARRIS v. MSPB 3
whichever is later.” Harris did not appeal OPM’s decision
until 260 days after he received it. After receiving Har-
ris’s appeal, the Board issued an Acknowledgment Order,
advising Harris that his appeal appeared untimely and
ordering him to provide evidence or argument that his
appeal was timely or that, if not, good cause existed for
the delay. OPM responded to the Board’s Order, arguing
that Harris’s appeal was untimely and filing a motion to
dismiss. Harris did not respond to the Board’s order or to
OPM’s motion to dismiss. The Board concluded that
Harris had not shown that his appeal was timely or that
good cause existed for the delay. Consequently, the Board
dismissed Harris’s appeal.
DISCUSSION
Under 5 C.F.R. § 1201.22(b)(1), an appeal to the
Board “must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30
days after the date of the appellant’s receipt of the agen-
cy’s decision, whichever is later.” If an appeal is untime-
ly, it “will be dismissed . . . unless a good reason for the
delay is shown.” 5 C.F.R. § 1201.22(c). A party may show
good cause for a delay by establishing that he exercised
due diligence under the circumstances of the case. Harris
bears the burden of proving that his appeal was timely
filed or, if untimely, that good cause existed for the delay.
See 5 C.F.R. § 1201.56(a)(2)(ii).
Here, Harris does not dispute that his appeal was un-
timely. Nor does Harris present any reason for the delay
in filing. He does not dispute that he received OPM’s
decision, or argue that he was unaware of the deadline for
filing his appeal. Before the Board, he did generally
suggest that he had inadequate legal assistance, stating
that he has “had lawyers who have just seemed to just
throw up both hands.” Respondent’s App’x at 16. Howev-
er, Harris does not explain how this caused his delay in
filing or point out how he acted diligently during the
4 HARRIS v. MSPB
delay. In sum, Harris has not met his burden of estab-
lishing a good reason for his delay in filing an appeal to
the Board. As such, we affirm the Board’s dismissal of his
claim.
AFFIRMED
COSTS
No Costs.