Mauricio G. Cale, Petitioner, v. United States Merit Systems Protection Board, Respondent, 950 F.2d 731 (Fed. Cir. 1991)

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U.S. Court of Appeals for the Federal Circuit - 950 F.2d 731 (Fed. Cir. 1991)

Nov. 13, 1991


Before NIES, Chief Judge, and PLAGER and LOURIE, Circuit Judges.

DECISION

PER CURIAM.


The Office of Personnel Management (OPM) denied Mauricio Cale's application for Civil Service Retirement Act (CSRA) annuity benefits. Cale appealed the decision to the Merit Systems Protection Board (MSPB). The MSPB dismissed the appeal for having been untimely filed.1  Cale appeals to this court. We must affirm the dismissal by the MSPB.

DISCUSSION

The MSPB dismissed Cale's appeal for having been filed late without even an attempt by Cale to show good cause for the delay. Cale had been notified by the OPM of the appeal procedures and time limits, and was given a chance by the MSPB to provide evidence and argument on the timeliness of his appeal. His response did not address the timeliness issue.

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:

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

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

3) unsupported by substantial evidence.

See 5 U.S.C. § 7703. On the record before us, there is no evidence on which this court can base any other outcome--the decision of the MSPB must be affirmed.

We note, merely in passing, that even if Cale's appeal had been accepted, nothing in the record suggests that the MSPB, or this court, could come to a conclusion on the merits any different from that of the OPM. Entitlement to a CSRA retirement annuity cannot be based on military service alone. Cale alleges nothing but military service; there is no evidence in the record that Cale ever served in any non-military position for the United States government. Thus, it appears that the OPM's conclusion on the merits is the only one supported by the facts of this case.

 1

Docket No. SE08319110185, May 1, 1991