Jose A. Santa Cruz v. Office of Personnel Management

26 F.3d 140

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Jose A. SANTA CRUZ, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 94-3104.

United States Court of Appeals, Federal Circuit.

May 11, 1994.

Before RICH, NIES, and MAYER, Circuit Judges.

RICH, Circuit Judge.

DECISION

1

Petitioner, Jose A. Santa Cruz, (Mr. Santa Cruz) seeks review of the October 18, 1993, final decision of the Merit Systems Protection Board (MSPB or Board), Docket No. SE-0831-93-0238-I-1, dismissing Mr. Santa Cruz's appeal of an Office of Personnel Management (OPM) decision denying his claim for an annuity under the Civil Service Retirement Act (CSRA) because the Board found that Mr. Santa Cruz's appeal was untimely filed without showing good cause for his delay. We affirm.

DISCUSSION

2

On June 24, 1983, OPM issued a reconsideration decision denying Mr. Santa Cruz's request for an annuity based on his federal service. An appeal from a final or reconsideration decision, that does not set an effective date, must be filed within 25-days of the date of the issuance of the decision. See 5 C.F.R. Sec. 1201.22. Mr. Santa Cruz did not file his appeal to the Board until March 22, 1993, nearly ten years after the regulatory deadline.

3

The administrative judge (AJ) acknowledged receipt of the appeal and, on two occasions, informed Mr. Santa Cruz that he had the burden to show that good cause existed for his untimeliness. See 5 C.F.R. Sec. 1201.56(a) (1991). Mr. Santa Cruz failed to address the timeliness issue or to provide any explanation as to why his appeal was filed nearly 10 years late. Mr. Santa Cruz only addressed the underlying issue concerning his benefits and requested the Board to grant his annuity on humanitarian grounds. Accordingly, the AJ found that good cause was not shown and that Mr. Santa Cruz's claim was insufficient to warrant a waiver of the Board's regulations.

4

This court's scope of review of a Board decision is limited by statute. 5 U.S.C. Sec. 7703(c). The Board's decision must be affirmed unless it is arbitrary, capricious, not in accordance with law, obtained without procedures required by rule, law, or regulations, or unsupported by substantial evidence. See, Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). We find no error in the Board's decision.