Unpublished Dispositionclarence W. Franklin, Petitioner, v. Office of Personnel Management, Respondent, 824 F.2d 979 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 824 F.2d 979 (Fed. Cir. 1987) June 8, 1987

Before MARKEY, Chief Judge, and NEWMAN and BISSELL, Circuit Judges.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. SF08318610441, affirming Office of Personnel Management's (OPM's) decision denying Clarence W. Franklin's (Franklin's) request for reconsideration based on untimeliness, is affirmed.

OPINION

The record shows that Franklin seeks a retirement annuity under 5 U.S.C. § 8336(c) (1). Congress authorized OPM to administer that section, and to promulgate "such regulations as are necessary and proper" to carry it out. 5 U.S.C. § 8347(a). One of the regulations OPM has promulgated is 5 C.F.R. Sec. 831.109(e) (1), which says that "A request for reconsideration must be received by OPM within 30 calendar days from the date of the original decision." If, as Franklin argues, California common or statutory law conflicts with that regulation, the federal law controls under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2. E.g., Free v. Bland, 369 U.S. 663, 668 (1962); Roebling v. Office of Personnel Management, 788 F.2d 1544, 1546-48 (Fed. Cir. 1986).

Franklin does not argue that the board incorrectly decided the facts. Accordingly, we affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437-38 (Fed. Cir. 1986) (affirming board's decision not to waive 20-day time limit where appeal was filed four days late).