956 F2d 1171 Felomino v. Sespene, v. Merit Systems Protection Board

956 F.2d 1171

Felomino v. SESPENE, Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 91-3406.

United States Court of Appeals, Federal Circuit.

Feb. 3, 1992.

NOTICE: Federal Circuit Local Rule 47.8(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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before PAULINE NEWMAN, ARCHER and PLAGER, Circuit Judges.

PER CURIAM.

DECISION


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1

Felomino V. Sespene applied to the Office of Personnel Management (OPM) for a retirement annuity under the Civil Service Retirement Act (CSRA). Sespene's application was denied. OPM noted that there was no evidence of any employment covered by the CSRA. After the Merit Systems Protection Board (MSPB) initial decision affirmed the denial of benefits1, Sespene petitioned for reconsideration. The MSPB dismissed the petition as untimely filed. Sespene appealed to this court; we must affirm.

DISCUSSION

2

The initial decision of the MSPB agreed with the OPM's conclusion that Sespene had not shown that he ever worked as a civilian employee of the United States government in a position covered by the CSRA. Sespene's petition for reconsideration by the MSPB was filed about 17 days late. Given the opportunity to explain the delay, Sespene merely asserted that he had not been home and could not be contacted when the initial decision arrived. The MSPB held that Sespene did not establish good cause for the untimely filing, and dismissed his petition.

3

The legal standard by which the Federal Circuit reviews decisions of the MSPB is that a decision must be affirmed unless it is found to be:

4

1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

5

2) obtained without procedures required by law, rule or regulation having been followed; or

6

3) unsupported by substantial evidence.

7

See 5 U.S.C. § 7703 (1988). On the record before us, the decision of the MSPB must be affirmed.


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8

We note in passing that both the OPM review and the MSPB's initial decision found no evidence in the record of any employment covered by the CSRA. The law is clear that, under these circumstances, no annuity can arise. See 5 U.S.C. § 8333.

1

No. SE08319010610, December 3, 1990