Luis B. Quesada v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUIS B. QUESADA,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1904
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-19-0488-I-1.
______________________
Decided: April 4, 2024
______________________
L UIS BRIGIDO Q UESADA, SR., Lima, Peru, pro se.
ALISON VICKS , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY .
______________________
Before L OURIE, D YK, and STOLL , Circuit Judges.
P ER CURIAM .
Case: 23-1904 Document: 23 Page: 1 Filed: 04/04/2024

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QUESADA v. OPM 2
Former USAID employee Luis B. Quesada filed an ap-
peal to the United States Merit Systems Protection Board
(“the Board”) from an Office of Personnel Management
(“OPM”) decision in 2009 confirming the accuracy of the
amount of his civil service retirement annuity. The Board
found that Quesada had failed to timely seek reconsidera-
tion of the OPM decision, and thus affirmed the OPM deci-
sion. Quesada v. Off. of Pers. Mgmt., MSPB Docket No.
DC-0831-19-0488-I-1, Initial Decision (M.S.P.B. May 28,
2019), S.A.1 1–8 (“Decision”). For the reasons provided be-
low, we affirm.
BACKGROUND
Quesada was a USAID-Peru employee from May 16,
1966 through March 3, 1972 when he was terminated due
to a reduction in force. S.A. 9–10. Quesada began to re-
ceive federal retirement annuity benefits in 2008. S.A.
11–15. On May 28, 2009, in response to an inquiry from
Quesada, OPM issued an initial decision confirming its
computation of his civil service retirement annuity. S.A.
16–19. The letter informed Quesada that (a) if he believed
the calculation was incorrect, he should contact USAID to
correct his employment records, and (b) he could seek re-
consideration of OPM’s decision within 30 days. Id.;
5 C.F.R. § 831.109(e)(1).
On June 26, 2009, OPM received a letter from Quesada
requesting an unspecified amount of additional time to
seek reconsideration while he worked to obtain information
from USAID. S.A. 20. Quesada and USAID communicated
regarding his employment records between 2009 and 2012.
See, e.g., S.A. 21–22. On January 25, 2012, USAID in-
formed Quesada that it had searched its records but was
unable to substantiate the figures Quesada had cited in his
1 “S.A.” refers to the supplemental appendix filed con-
currently with the government’s informal responsive brief.
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QUESADA v. OPM 3
communications. S.A. 22. It also explained that he had
failed to timely request reconsideration of OPM’s decision
and, if he still sought reconsideration, would need to ex-
plain his delay in filing. Id.
On January 30, 2012, Quesada sent a letter to OPM
again requesting an unspecified amount of additional time
to seek reconsideration while he communicated with
USAID concerning changing his employment records. S.A.
23. In November 2017, OPM sent a letter to Quesada in-
forming him that the letter constituted OPM’s final deci-
sion upholding the May 2009 annuity calculation because
Quesada had not requested reconsideration of said decision
and denying any additional extension of time. S.A. 24. On
January 25, 2018, Quesada responded to the letter, re-
questing reconsideration of the May 2009 initial decision.
S.A. 25–26. OPM responded in October 2018, explaining
that Quesada had failed to request reconsideration in a
timely manner and pointing out that he had not submitted
any additional information in the over nine years that had
passed since the initial decision. S.A. 27.
On May 6, 2019, Quesada appealed to the Board. He
argued that OPM had miscalculated his retirement annu-
ity amount. S.A. 28–32. He acknowledged that he had not
sought reconsideration within 30 days of the May 28, 2009
letter, but argued that the delay should have been excused
because it was due to his inability to obtain information
from USAID. S.A. 41–51. OPM responded, requesting that
the Board dismiss the appeal because Quesada’s request
for reconsideration was untimely. S.A. 33. According to
OPM, in June 2009, Quesada had timely requested a 30-
day extension to respond to the May 2009 letter, making
his request for reconsideration due by July 30, 2009. Id.
However, argued OPM, he did not request reconsideration
until January 25, 2018. Id.
The Board found that Quesada’s request for reconsid-
eration was untimely. Decision at S.A. 4. It explained that
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QUESADA v. OPM 4
a request for reconsideration must be received by OPM
within 30 calendar days from the date of OPM’s initial de-
cision, but that that time limit may be extended when an
individual shows (a) that he was not notified of the time
limit and was not otherwise aware of it, or (b) that circum-
stances beyond his control prevented him from making a
request within the time limit. Id. at 4–5 (citing 5 C.F.R.
§ 831.109(e)). The Board stated that it could reverse an
OPM final decision denying a waiver of the time limit only
if OPM’s denial was unreasonable or an abuse of discretion.
Id. at S.A. 5 (citing Meister v. Office of Personnel Manage-
ment, 52 M.S.P.R. 508, 513 (M.S.P.B. Jan. 28, 1992)). And
the appellant has the burden of proving by a preponder-
ance of the evidence that his request for reconsideration or
waiver was timely or that OPM should have extended the
time limit. Id. (citing 5 C.F.R. § 1201.56; Sanderson v. Of-
fice of Personnel Management, 72 M.S.P.R. 311, 317
(M.S.P.B. Nov. 15, 1996), aff’d without opinion, 129 F.3d
134 (Fed. Cir. 1997)).
The Board found that Quesada had failed to show that
OPM erred in not waiving the time for him to seek recon-
sideration. Decision at S.A. 5. The Board noted that both
OPM and USAID had notified him of the need to timely file
a request for reconsideration. Id. (citing S.A. 17, 22). In
his letters to OPM requesting additional time, the Board
found that Quesada had stated that he was unable to re-
quest reconsideration because he did not have any addi-
tional evidence that OPM sought. It concluded that that
explanation showed that Quesada “failed to request recon-
sideration, not because of circumstances beyond his con-
trol, but because he did not have sufficient evidence to
establish his claim.” Id. at S.A. 6. It therefore found that
OPM’s decision not to waive the time limit for requesting
reconsideration was not unreasonable or an abuse of dis-
cretion, thus affirming its final decision. Id. It went on to
conclude that, even had Quesada timely requested
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QUESADA v. OPM 5
reconsideration, the OPM decision should be affirmed on
the merits. Id. at S.A. 6–7.
Quesada appeals. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm a decision from the Board unless it was
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy,
727 F.2d 1535, 1537 (Fed. Cir. 1984).
A request for reconsideration of an OPM decision must
be received by OPM within 30 calendar days of the original
decision. 5 C.F.R. § 831.109(e)(1). That time limit may be
extended when an individual shows (a) “that he/she was
not notified of the time limit and was not otherwise aware
of it,” or (b) “that he/she was prevented by circumstances
beyond his/her control from making the request within the
time limit.” 5 C.F.R. § 831.109(e)(2).
There is no dispute that OPM did not receive a request
for reconsideration from Quesada within 30 days of the
original decision. Indeed, it did not receive a request for
reconsideration until January 25, 2018, almost a decade af-
ter the deadline had passed. S.A. 25–26. Quesada does not
contest that he was notified of the time limit, which is evi-
denced through letters from both OPM and USAID, as well
as his own request for extension of the time limit. S.A.
16–19, 20, 22. Thus, in order to prevail, Quesada had the
burden to show that circumstances prevented him from
making a timely request for reconsideration.
On appeal, Quesada does not appear to address OPM’s
denial of his reconsideration request or the Board’s uphold-
ing of that denial. But given that Quesada is appearing pro
se, we still opt to consider his argument before the Board
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QUESADA v. OPM 6
that circumstances beyond his control prevented him from
making a request within the time limit.
However, as the Board found, the evidence shows that
Quesada failed to timely request reconsideration not be-
cause he was waiting for information from USAID, but “be-
cause he did not have sufficient evidence to establish his
claim.” Decision at S.A. 6; see also S.A. 41 (Quesada assert-
ing that he did not timely submit his request for reconsid-
eration “because USAID refused to acknowledge that its
report sent to OPM was not truthful, proportional, logical,
or reasonable”). That is consistent with the record. De-
spite an “extensive search” by USAID, it informed Quesada
that it was “unable to substantiate the earnings figures” he
had mentioned. S.A. 22. It additionally explained that it
had “already complied with providing the information [it
had] at the OPM office in Washington and unfortunately
[had] no additional information to provide.” S.A. 21. In-
deed, Quesada then informed OPM that USAID had “re-
fused to change the documents forwarded to OPM.” S.A.
24; see also S.A. 20 (Quesada informing OPM that USAID
did “not have anything more to inform OPM”). Even at the
time of his eventual request for reconsideration, Quesada
provided no new evidence. S.A. 27. Thus, Quesada has
failed to show that his failure to timely request reconsider-
ation was due to circumstances beyond his control. Under
our standard of review, we must therefore affirm.
CONCLUSION
We have considered Quesada’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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