Servillano B. Casilang v. Merit Systems Protection Board

98 F.3d 1359 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Servillano B. CASILANG, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. No. 96-3193. United States Court of Appeals, Federal Circuit. Oct. 10, 1996. Before RADER, SCHALL, and BRYSON, Circuit Judges. RADER, Circuit Judge. — 1 — Servillano B. Casilang seeks review of the Merit System Protection Board's (Board) denial of his appeal because it was untimely filed. Because the Board correctly declined to hear this appeal more than six years after it should have been filed, this court affirms. BACKGROUND — 2 — Mr. Casilang applied to the Office of Personnel Management (OPM) for retirement benefits based on his federal service. His application was denied because OPM found that Mr. Casilang had not served in a position covered by the Civil Service Retirement System. After Mr. Casilang requested reconsideration, OPM finally denied his claim on May 9, 1989. — 3 — Mr. Casilang filed an appeal with the Board on August 14, 1995. The administrative judge ordered Mr. Casilang to show cause for his six year delay in filing his appeal. Having received no response from Mr. Casilang by November 22, 1995, the administrative judge issued an initial decision dismissing the appeal because it was untimely filed. The initial decision became final on February 27, 1996, when the Board denied Mr. Casilang's petition for review. Mr. Casilang appeals. DISCUSSION — 4 — Mr. Casilang should have filed his appeal of OPM's decision by June 2, 1989, twenty-five days after that decision was issued. 5 C.F.R. § 1201.22(b) (1989). OPM advised Mr. Casilang of this time requirement in plain terms. However, Mr. Casilang's appeal was not received until August 14, 1995, more than six years after it was due. — 5 — The time limit for filing an appeal may be waived by the Board if the appellant can demonstrate good cause for his failure to file a timely appeal. 5 C.F.R. § 1201.22(c). The administrative judge gave Mr. Casilang an opportunity to show cause for his delay in filing, but he did not respond within the required time limit. Where an appellant fails to demonstrate good cause for his untimely filing of an appeal brief, waiver of the time limit is not appropriate. See Womack v. Merit Sys. Protection Bd., 798 F.2d 453, 456 (Fed.Cir.1986). — 6 — Even though Mr. Casilang's letter to the Board dated December 12, 1995, was not filed in time to be considered by the administrative judge, this court has reviewed that letter and the reasons stated therein for Mr. Casilang's delay. We appreciate that Mr. Casilang has represented himself in the proceedings before OPM, the Board, and this court. However, this fact is simply insufficient to excuse his six year delay in the face of the clear instructions from OPM regarding the time limit for appeals. — 7 — This court may reverse the Board's decision only if it was arbitrary, capricious, an abuse of discretion, or otherwise unlawful; procedurally deficient; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 (Fed.Cir.1982). There is no such error in this case and, accordingly, we affirm.