Pablo Madriaga, Petitioner, v. Office of Personnel Management, Respondent, 60 F.3d 840 (Fed. Cir. 1995)

The Office of Personnel Management moves for a summary affirmance of the Merit Systems Protection Board's decision dismissing Pablo Madriaga's petition for review as untimely. Madriaga has not responded.

In 1983, Madriaga submitted a claim for benefits to OPM seeking, inter alia, award of a retirement annuity pursuant to the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq. OPM denied Madriaga's claim on the ground that he had not accumulated five years of "creditable service" with the federal government. In 1988, Madriaga sought reconsideration of OPM's decision, and on January 7, 1989, OPM affirmed its earlier determination.

In its decision, OPM informed Madriaga that any appeal to the Board was due within 25 days. Madriaga did not submit a petition for review to the Board until March 21, 1994, and he did not explain why he had failed to seek review within 25 days of the issuance of OPM's reconsideration decision. On March 22, 1994, the administrative judge (AJ) issued an acknowledgement order that directed Madriaga to file evidence showing that his appeal was timely filed. Madriaga failed to comply with the AJ's request and did not offer an explanation for the untimeliness of his petition at any time during the subsequent proceedings before the Board. On June 14, 1994, the AJ dismissed Madriaga's appeal on the ground that it "was untimely by over five years" and that Madriaga had not shown good cause for the delay. The Board denied Madriaga's petition for review, and the initial decision became final. Madriaga petitioned this court for review.

Summary disposition of a case "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). In the present case, it is clear that summary disposition is warranted. Madriaga's appeal was filed over five years after the expiration of the appellate period. 5 C.F.R. Sec. 1201.22(b) (appeal from OPM reconsideration decision must be filed within 25 days of the date of decision). Madriaga has made no attempt to explain the delay, either in the proceedings before the Board or in his submissions to this court. 5 C.F.R. Sec. 1201.22(c) (petitioner bears burden of demonstrating that petition was timely filed or that good cause exists for delay). The Board has broad discretion to determine whether the regulatory time period for filing a petition for review should be waived in a particular case, and this court will not substitute its judgment for the Board's in such cases. Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 (Fed. Cir. 1982).

Accordingly,

IT IS ORDERED THAT:

(1) OPM's motion for summary affirmance is granted.

(2) Each side shall bear its own costs.