Alfredo F. Ravago v. Merit Systems Protection Board

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-3079
ALFREDO F. RAVAGO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Alfredo F. Ravago, of Olongapo City,Philippines, pro se.
Michael A. Carney, General Attorney, Office of the General Counsel, United
States Merit Systems Protection Board, of Washington, DC, for respondent. With him
on the brief were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General
Counsel, and Sara B. Rearden, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-3079
ALFREDO F. RAVAGO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
____________________________
DECIDED: June 8, 2007
____________________________
Before MICHEL, Chief Judge, and LOURIE and RADER, Circuit Judges.
PER CURIAM.
DECISION
Alfredo F. Ravago (“Ravago”) appeals from the final decision of the Merit
Systems Protection Board (the “Board”) dismissing his appeal from the final decision of
the Office of Personnel Management (“OPM”) that denied his application for retirement
benefits as untimely. Ravago v. Office of Pers. Mgmt., SF-0831-06-0494-I-1 (M.S.P.B.
Nov. 15, 2006) (initial decision dated July 28, 2006). Because substantial evidence
supports the Board’s decision, we affirm.

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BACKGROUND
Ravago retired from his position in the Transportation Department of the U.S.
Navy Public Works Center at Subic Bay, Philippines on February 28, 1986 with thirty-six
years, three months, and three days creditable service with the U.S. Forces Philippines.
On April 16, 1986, Ravago applied to OPM for a Civil Service Retirement System
(“CSRS”) annuity. In a May 31, 1988 initial decision, OPM denied Ravago’s request for
retirement benefits, stating that he did not have the requisite five years of service ending
in an appointment that was subject to CSRS coverage because his service after
November 13, 1950 was excluded from CSRS coverage by Executive Order 10180.
The notice included instructions on how to request reconsideration of the initial decision
and explained that the request must be made within thirty days of the date of the initial
decision, unless he failed to receive notice of the time limit or was prevented from
responding by a cause beyond his control.
On May 5, 1999, almost eleven years after the initial decision, Ravago sent a
letter to OPM requesting reconsideration “of OPM initial decision.” The letter states that
a copy of the referenced decision was attached, but it is not in evidence, and the parties
appear to dispute which OPM correspondence Ravago may have attached. In any
case, OPM interpreted the May 5, 1999 letter as a request for reconsideration of the
May 31, 1988 initial decision. In its February 14, 2000 response to the request for
reconsideration, OPM thus found that the request was not timely because it was not
filed within the allowable time limit and Ravago had not provided evidence or argument
that would justify an extension of the time limit. The February 14, 2000 letter also noted
that other correspondence between Ravago and OPM did “not constitute a new initial
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decision on [his] application for benefits” and did not begin a new and separate
application for benefits. Finally, the February 14, 2000 letter specifically stated that it
was the “final decision of OPM on [the] matter” and provided instructions on how to
appeal the decision to the Board, noting that the time limit for appeal was thirty days
after the date of the decision or after receipt of the decision, whichever was later.
On March 20, 2006, Ravago filed his petition appealing the OPM decision to the
Board. OPM provided a copy of its file on Ravago’s application to the Board and
objected to the appeal as untimely on April 19, 2006. In an Order on May 15, 2006, the
administrative judge (“AJ”) ordered Ravago to provide evidence establishing good
cause for the delay in filing his appeal past the normal thirty-day deadline. Again, in a
May 31, 2006 Order, the AJ informed Ravago that he was obligated to show good
cause for the delay in filing his appeal and extended the deadline for the close of
evidence by fifteen days to June 30, 2006. Both of the AJ’s Orders summarized the law
applicable to the timing of appeals to the Board and the requirements for Ravago to be
eligible for CSRS benefits. On June 5, 2006, the AJ received a response to his May 15,
2006 Order that addressed the merits of Ravago’s appeal, but did not address its
untimeliness. The AJ issued an Initial Decision on July 28, 2006 dismissing Ravago’s
appeal as untimely without good cause having been shown for the delay. On November
15, 2006, the Board found that no new evidence had been presented to it and that the
AJ had made no errors of law, and thus it denied Ravago’s petition for review. The
Initial Decision became the final decision of the Board. See 5 C.F.R. § 1201.113.
Ravago timely appealed to this court, and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
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DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(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.” 5 U.S.C. § 7703(c); see Walls v. Merit Sys. Prot. Bd., 29 F.3d
1578, 1581 (Fed. Cir. 2003) (stating that this standard specifically applies to review of a
Board decision to deny a good cause waiver). Generally, “an appeal must be filed no
later than 30 days after the effective date, if any, of the action being appealed, or 30
days after the date of receipt of the agency's decision, whichever is later.” 5 C.F.R. §
1201.22(b)(1). “If a party does not submit an appeal within the time set by statute,
regulation, or order of a judge, it will be dismissed as untimely filed unless a good
reason for the delay is shown.” 5 C.F.R. § 1201.22(c). Ravago bore the burden of
proof with respect to the timeliness of his appeal. 5 C.F.R. § 1201.56(a)(2)(ii).
On appeal, Ravago argues that the Board erred in failing to address the merits of
his claim. Ravago argues, apparently for the first time, that he never received the May
31, 1988 initial decision of OPM and that that led to the confusion about which decisions
of OPM he was appealing. He argues that the timing of his appeals and whether OPM
properly provided reconsideration must be determined in light of that fact. The
government responds that Ravago was given clear notice of the applicable time limit for
appeal and failed to establish the existence of circumstances beyond his control that
kept him from filing on time. The government also adds that in light of Ravago’s May 5,
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1999 letter requesting reconsideration of OPM’s initial decision, it is highly unlikely that
Ravago never received the May 31, 1988 initial decision.
We agree with the government that substantial evidence supports the Board’s
dismissal of Ravago’s appeal. Even assuming that Ravago’s assertions concerning the
alleged errors made by OPM were true, the record shows that Ravago had clear notice
in the February 14, 2000 decision that it was OPM’s final decision on his application. It
was thus incumbent upon Ravago to present whatever errors he believed had been
made by OPM in an appeal to the Board within the thirty-day deadline clearly identified
in the February 14, 2000 decision. However, Ravago failed to file his appeal to the
Board until March 20, 2006, more than six years later. Although the AJ clearly notified
Ravago of the need to show good cause for the six-year delay in filing his appeal to the
Board (not even considering the delay in any prior proceedings), Ravago failed to
provide any reason for the delay in his appeal to the Board. We therefore affirm the
Board’s decision dismissing Ravago’s appeal as untimely.
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