Danuel J. Boykin v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANUEL J. BOYKIN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3058
______________________
Petition for review of Merit System Protection Board
in No. CH844E120166-I-1
______________________
Decided: June 10, 2013
______________________
Danuel J. Boykin, of South Holland, Illinois, pro se.
WILLIAM P. RAYEL , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. D ELERY , Acting Assistant Attor-
ney General, J EANNE E. D AVIDSON, Director, and D EBORAH
A. BYNUM , Assistant Director.
______________________
Before L OURIE, P LAGER, and T ARANTO, Circuit Judges.

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DANUEL BOYKIN v. OPM 2
P ER CURIAM .
Danuel J. Boykin pro se petitions for review of the fi-
nal decision of the Merit Systems Protection Board
(MSPB or “the Board”). In that decision, the Board up-
held the Office of Personnel Management’s (OPM) deter-
mination denying Mr. Boykin’s petition for retirement
benefits due to his untimely filing. Boykin v. Office of
Pers. Mgmt., No. CH-844E-12-0166-I-1 (M.S.P.B. Dec. 26,
2012). For the reasons that follow, we affirm.
BACKGROUND
Mr. Boykin has served in the military and in the civil-
ian federal service for a combined 18 years. He most
recently worked as a secretary at the Internal Revenue
Service (IRS). He resigned from the IRS on October 15,
2009. After Mr. Boykin resigned, he filed an application
for disability retirement with OPM due to various injuries
he claimed were connected to his service.
Francine Johnson, a Legal Administrative Specialist
at OPM, sent Mr. Boykin a letter stating that his medical
documentation was not sufficient to support his applica-
tion for disability retirement. Mr. Boykin contends that
he called Ms. Johnson and told her that he would send his
entire medical record, which was the size of an una-
bridged dictionary. According to Mr. Boykin, Ms. Johnson
told him to send only the previous year or two from his
medical record. Mr. Boykin protested, claiming that the
entire record was necessary, but he ultimately complied.
On May 6, 2010, OPM issued its initial decision deny-
ing Mr. Boykin’s application. The decision stated that Mr.
Boykin had 30 calendar days to request reconsideration
and that he should not delay sending his request to obtain
additional documentation. Mr. Boykin called Ms. John-
son and discussed the 30-day timeline with her. He told
her that he intended to send his entire medical record, but

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DANUEL BOYKIN v. OPM 3
according to Mr. Boykin, Ms. Johnson repeated her in-
struction not to send the entire record.
Mr. Boykin took no action until ten months after he
received OPM’s decision. On March 25, 2011, Mr. Boykin
sent OPM a letter requesting reconsideration and provid-
ing additional documentation to support his claim. Later
still, on October 26, 2011, Mr. Boykin sent OPM a formal
request for reconsideration with his entire medical record.
OPM dismissed Mr. Boykin’s request as untimely.
Mr. Boykin sought review from the MSPB. The ad-
ministrative judge affirmed OPM’s reconsideration deci-
sion in an April 3, 2012 decision, finding that submitting
evidence and requesting reconsideration were two distinct
acts, and any instructions that Ms. Johnson may have
given on the former did not excuse Mr. Boykin’s failure to
comply with the latter. On December 26, 2012, the MSPB
denied Mr. Boykin’s petition for review of the administra-
tive judge’s decision. This petition for review followed.
We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
D ISCUSSION
The scope of our review is limited. We only set aside
Board decisions that are “(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) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c).
Mr. Boykin seeks an extension of the 30-day time lim-
it set forth in 5 C.F.R. § 841.306(d)(1) through the excep-
tion provided in 5 C.F.R. § 841.306(d)(2). To do so, he
must show either 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. §
841.306(d)(2).

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DANUEL BOYKIN v. OPM 4
Mr. Boykin concedes that he was aware of the 30-day
time limit, but argues that he was prevented by circum-
stances beyond his control from making his request. In
particular, Mr. Boykin contends that Ms. Johnson inten-
tionally misled and misinformed him.
We agree with the Board’s analysis. Submitting a re-
quest for reconsideration and submitting additional
evidence with the request are two different things. Even
if Ms. Johnson misled Mr. Boykin about the information
that he could submit with his request, she did not mislead
him about whether he could delay in submitting his
request. And the only evidence of record on this point
weighs against Mr. Boykin’s claim. In particular, the
decision that OPM sent Mr. Boykin states:
You may submit any supporting evidence or ar-
guments with your request for reconsideration. If
you are unable to submit additional documenta-
tion with your reconsideration request, do not
delay sending us your request. You should tell
us in your request that you intend to submit addi-
tional evidence at a later date.
Resp’t’s App. 30. (emphasis in original). The decision
repeats, “Remember; do not delay sending your re-
quest for reconsideration while obtaining additional
documentation.” Id. at 31 (emphasis in original). The
decision further provides a checkbox for the applicant to
check if he or she intends to request reconsideration but
needs additional time to gather information about the
relevant disability. Id. at 32.
The language in the decision is clear and Mr. Boykin
fails to explain why he did not comply with it. At most
Mr. Boykin makes a vague allegation that he was “mis-
led” and that he complied with “every instruction that
[Ms. Johnson] gave me.” Pet’r’s Rep. Br. at 1. But the
only content of their conversations that we have on the
record is 1) Ms. Johnson’s discussion with Mr. Boykin of

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DANUEL BOYKIN v. OPM 5
the 30-day deadline outlined in OPM’s decision—which
weighs against his claim—and 2) her direction to send at
most a portion of his medical record. There is no evidence
that Ms. Johnson told Mr. Boykin that he could file his
request beyond this 30-day window, that he should not
file his request without first obtaining additional evi-
dence, or that he should not file his request for reconsid-
eration at all.
We have considered Mr. Boykin’s arguments, and giv-
en our standard of review, we do not find any ground on
which we can do other than affirm the Board.
AFFIRMED
COSTS
No Costs.

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