                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENNIS MCGAUGHY,                                DOCKET NUMBER
                 Appellant,                          DC-0831-14-0275-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 21, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Dennis McGaughy, Snow Hill, North Carolina, pro se.

           Patrick Jennings, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
     that dismissed the appellant’s request for reconsideration as untimely filed.
     Generally, we grant petitions such as this one only when: the initial decision

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.           See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         On September 23, 2010, OPM issued an initial decision informing the
     appellant that because, prior to retirement, he had not made a deposit of 7 percent
     of his estimated earnings or basic pay for his post-1956 active-duty military
     service and he was now in receipt of payments under Social Security, his
     retirement annuity would be recomputed to eliminate credit for all post-1956
     military service from his annuity computation. Initial Appeal File (IAF), Tab 6 at
     11.   OPM’s initial decision informed the appellant that he could dispute the
     reduction in his federal retirement annuity by requesting reconsideration within
     30 days of the date of the initial decision.             Id.    By letter postmarked,
     November 30, 2012, the appellant requested reconsideration.            Id. at 9.   OPM
     issued an initial decision that dismissed the appellant’s request for “lack of
     timeliness.” Id. at 5.
¶3         On   appeal,       the   administrative   judge   found   that   the   appellant’s
     reconsideration request was untimely filed by more than 2 years. IAF, Tab 19,
     Initial Decision (ID) at 2. She also found that, while the appellant submitted
     documentation that shows that he suffered from medical conditions and
                                                                                      3

     experienced serious financial difficulties during the period when he would have
     received OPM’s September 23, 2010 decision to reduce his annuity, the evidence
     submitted by the appellant is insufficient to show that he was prevented by
     circumstances beyond his control from timely requesting reconsideration. ID at
     7-8.
¶4          In his very brief petition for review, the appellant states that the
     administrative judge did not give him enough time to respond properly and that
     “[n]either the MSPB nor OPM addressed the issue which began in 1982.”
     Petition for Review File, Tab 1.
¶5          A request for reconsideration of an initial decision issued by OPM
     regarding retirement benefits must be received by OPM within 30 calendar days
     from the date of the initial decision. 5 C.F.R. § 831.109(e)(1). OPM may extend
     the time limit for filing a request for reconsideration when the applicant can
     prove that he was not notified of the time limit and was not otherwise aware of it,
     or that he was prevented by circumstances beyond his control from making the
     request within the time limit. 5 C.F.R. § 831.109(e)(2); see Davis v. Office of
     Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006).
¶6          The appellant’s November 30, 2012 request for reconsideration and waiver
     was filed more than 2 years after the issuance of OPM’s initial decision.
     Information and instructions enclosed with that initial decision included the
     statement that the request must be received by OPM within 30 calendar days of
     the date of the initial decision. IAF, Tab 6 at 14. The instructions stated that
     OPM can extend the time limit if the appellant could show that he: (1) was not
     notified of the time limit and was not otherwise aware of it; or (2) was prevented
     from responding by a cause beyond his control. Id.; see 5 C.F.R. § 831.109(e)(2);
     see also Azarkhish v. Office of Personnel Management, 915 F.2d 675, 677 (Fed.
     Cir. 1990). The good cause standard the Board applies to cases untimely filed
     with the Board is a more lenient standard than the narrower factual criteria under
     5 C.F.R. § 831.109(e)(2). Azarkhish, 915 F.2d at 677 n. 1.
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¶7         To the extent that the appellant is asserting on petition for review that the
     administrative judge did not allow him enough time to submit evidence, his
     assertion is unavailing. On January 17, 2014, the appellant requested additional
     time to obtain his personnel folder. IAF, Tab 3. The administrative judge issued
     an Order to Show Cause, directing the appellant to submit evidence and argument
     to show that he was not notified of the time limit for filing a request for
     reconsideration or that he was prevented by circumstances beyond his control
     from filing the request with the time limit. IAF, Tab. 4. In the Show Cause
     Order, she denied the appellant’s request for an extension but noted that the
     appellant could renew his request after the issue of the timeliness of his request
     for reconsideration was decided. Id. To the extent that the appellant’s petition
     for review is a renewal of his request for time to obtain his personnel folder now
     that the initial decision decided the issue of the timeliness of his request for
     reconsideration, we find no basis to grant it. We agree with the administrative
     judge that the appellant withdrew his assertion that he did not receive OPM’s
     initial decision. ID at 6. We also agree with the administrative judge that he
     failed to show that health problems or financial difficulties prevented him from
     timely requesting reconsideration. ID at 7-8.
¶8          To the extent that the appellant is asserting that the administrative judge
     erred in failing to reach the merits of his claim that OPM improperly reduced his
     annuity based on his failure, prior to retirement, to make a deposit of 7 percent of
     his estimated earnings or basic pay for his post-1956 active-duty military service,
     his argument is also unavailing. Only when the Board finds that OPM incorrectly
     dismissed a reconsideration request on timeliness grounds, does the Board have
     jurisdiction over the merits of the appeal. See Goodman v. Office of Personnel
     Management, 100 M.S.P.R. 43, ¶ 12 (2005). Because OPM correctly dismissed
     the   appellant’s   request   for   reconsideration   as   untimely   submitted,   the
     administrative judge properly did not adjudicate the merits of OPM’s
     recomputation of the appellant’s annuity.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
