Domingo C. Carcido, Petitioner, v. Merit Systems Protection Board, Respondent, 5 F.3d 1503 (Fed. Cir. 1993)

Domingo C. Carcido (Mr. Carcido) seeks review of a final decision of the Merit Systems Protection Board (Board), Docket No. SE0831920142I1, dismissing Mr. Carcido'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. Carcido's appeal was untimely filed without good cause. We affirm.

DISCUSSION

On December 9, 1991, OPM issued a reconsideration decision denying Mr. Carcido's request for an annuity based on his federal service. OPM informed Mr. Carcido that there was a 25-day time limit to appeal the decision to the Board. See 5 C.F.R. Sec. 1201.22 (1991). However, Mr. Carcido did not file his appeal to the Board until January 13, 1991--ten days after the regulatory deadline.

The administrative judge (AJ) acknowledged receipt of the appeal but informed Mr. Carcido 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. Carcido informed the AJ that he had been out of town and therefore did not know when OPM's decision arrived or when the appeal was due. However, Mr. Carcido failed to indicate, among other things, when he received the decision, how long he was out of town, or when he returned to his address. As a result, the AJ was unable to determine whether or not it had been prudent for Mr. Carcido not to make arrangements to have his mail forwarded, or whether he acted promptly after his personal receipt of the decision. Accordingly, the AJ found that good cause was not shown and that Mr. Carcido's claim was insufficient to warrant a waiver of the Board's regulations.

The AJ's decision became final on October 1, 1992 when Mr. Carcido's petition for review was denied by the full Board after it determined that the petition did not meet the criteria for review under 5 C.F.R. Sec. 1201.115 (1991). This appeal followed.

This court's scope of review of a Board decision is limited by statute. 5 U.S.C. § 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). Finding no error in the Board's decision, we affirm.