              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
               is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit


                                          06-3019



                                    JAMES D. HILTS, SR.,

                                                               Petitioner,

                                             v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                               Respondent.



                            __________________________

                            DECIDED: August 16, 2006
                            __________________________



Before NEWMAN, MAYER, and BRYSON, Circuit Judges.

PER CURIAM.



       James D. Hilts, Sr. petitions for review of the decision of the Merit Systems Control

Board, Docket No. SF844E050152-I-1, affirming the decision of the Office of Personnel

Management ("OPM") denying his request for disability retirement for untimely filing. We

affirm the decision of the Board.
                                         Background

       Mr. Hilts was separated from his civilian position with the Department of the Navy in

1997 when a base closure precipitated a reduction in force. In July, 2003, Mr. Hilts applied

to OPM for a disability retirement. The agency noted that an application for disability

retirement must be filed within one year of separation from federal service and denied the

application as untimely filed. It notified Mr. Hilts that he could request reconsideration, but

that request must be received by OPM within 30 days of the initial decision, in this case

Nov. 24, 2003. He filed a request for reconsideration on Feb. 4, 2004, and provided no

explanation for either late filing. By letter of March 10, 2004, the agency notified Mr. Hilts

that his request for reconsideration was untimely filed and set forth the criteria for waiver of

the time limit. The agency also informed him that his response must be received within 30

days of that letter. Mr. Hilts then submitted a 25 page letter from his psychologist, dated

May 20, 2004, which summarized his medical and psychiatric history and current status. It

ended with the evaluation:

         With all of his psychological and physical maladies it would seem very
       appropriate to conclude that this man is not able to meet deadlines. Rather it
       is highly suggestive that he is totally unable to act in a timely fashion. From
       all records and his own presentations, it can easily be seen that his ability to
       act in his own best interest is at least moderately, and much of the time,
       severely restricted.

OPM then issued its final decision, finding that Mr. Hilts' reconsideration request was

untimely and he had not established his eligibility for waiver of the time limit.

       Mr. Hilts appealed to the Board. In an initial decision of March 18, 2005, the

Administrative Judge examined the psychologist's report as well as supplemental report,



06-3019                                        2
and found that Mr. Hilts was indeed incapable of submitting a timely reconsideration

request. However, the AJ noted that Mr. Hilts had been represented by Mr. James Wright

in his dealings with OPM, and the record did not support a conclusion that Mr. Hilts'

condition in any way caused his representative to miss the filing deadline. The AJ affirmed

the agency action, the full Board declined review, and this appeal followed.

                                          Discussion

       It is not disputed that Mr. Hilts was represented by Mr. Wright throughout the

proceedings below, and Mr. Wright received copies of all relevant notifications from the

Agency. Nor is it disputed that Mr. Wright failed to timely request reconsideration of the

Agency's initial decision. We have frequently stated that petitioners are bound by the

actions of their representatives. See, e.g., Azarkhish v. OPM, 915 F.2d 675 (Fed. Cir.

1990). Thus Mr. Hilts must establish that his medical and psychological condition excuse

Mr. Wright's failure to timely file for reconsideration as well as his own.

       The Board concluded that the record did not support such a finding. The only

evidence addressing Mr. Wright's failure to file on time is a "Declaration of James Wright"

dated April 22, 2005, stating that Mr. Hilts' delay in filing the application for reconsideration

"was due to his inability to communicate with me, because of his medical conditions." The

declaration does not elaborate further or point to additional evidence supporting its

allegation.

       Although this declaration was filed after the Initial Decision was issued and is not

part of the record in this case, we note that the AJ specifically addressed the question of

Mr. Hilts' ability to communicate with his representative and found that, based on the


06-3019                                        3
psychological evaluations in the record, there was little or no impairment in Mr. Hilts' ability

to communicate. We discern no error in that determination.

       The decision of the Board is affirmed.




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