Mercedes L. Vda De Rabo, Petitioner, v. Merit Systems Protection Board, Respondent, 930 F.2d 38 (Fed. Cir. 1991)

The final decision of the Merit Systems Protection Board in Docket No. SE08319010356 dismissing Mercedes L. Vda de Rabo's petition for survivor benefits under the Civil Service Retirement System for lack of jurisdiction is affirmed.

OPINION

The board lacks jurisdiction over de Rabo's claim because there was no final decision by OPM when she filed her petition with the board. Inasmuch as only a final decision of OPM may be appealed, 5 C.F.R. Sec. 831.110 (1990), de Rabo could not meet her burden of establishing the board's jurisdiction. See id. Sec. 1201.56(a) (2) (i).

The initial decision OPM issued after de Rabo appealed does not satisfy the jurisdictional requirement both because it came too late and because it is not final. A final decision is one issued by the representative of the Associate Director for Compensation after reconsidering the initial decision. Id. Sec. 831.109(f). No such final decision has been issued.

De Rabo was required to seek reconsideration of OPM's initial decision within thirty days of its issuance on November 1, 1990, id. Sec. 831.109(e) (1), but that limit may be extended if she can show that she was not notified of the time limit and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit. Id. Sec. 831.109(e) (2). See Azarkhish v. Office of Personnel Management, 915 F.2d 675, 678 (Fed. Cir. 1990). If de Rabo believes she can make either of these showings, she should apply to the Associate Director who may extend the time for her to seek reconsideration. On the record presently available, however, the board properly dismissed this case.

PAULINE NEWMAN, Circuit Judge, would remand to the MSPB with instructions that the case be decided on its merits; for the MSPB is authorized to assume jurisdiction if OPM "has delayed ruling beyond reasonable limits", as it did in this case.