Olivia C. Davie, on Behalf of Harold E. Davie v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
OLIVIA C. DAVIE, ON BEHALF OF HAROLD E.
DAVIE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2318
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-18-0327-I-1.
______________________
Decided: May 8, 2025
______________________
O LIVIA C. D AVIE , Apple Valley, CA, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Case: 24-2318 Document: 31 Page: 1 Filed: 05/08/2025

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DAVIE v. MSPB 2
Before M OORE, Chief Judge, CUNNINGHAM , Circuit Judge,
and SCARSI, District Judge.1
P ER CURIAM .
Olivia Davie appeals a final order of the Merit Systems
Protection Board (Board) dismissing her late husband’s ap-
peal of an Office of Personnel Management (OPM) decision
as untimely filed and denying her petition for review. For
the following reasons, we affirm.
BACKGROUND
On December 7, 2017, OPM issued a final decision
denying as untimely Harold Davie’s request to elect a sur-
vivor annuity benefit for his wife, Mrs. Davie. S. Appx. 34–
35.2 OPM notified Mr. Davie of his right to appeal to the
Board and explained an appeal must be filed within 30 cal-
endar days after the date of the OPM decision, or 30 days
after receipt of the decision, whichever was later. Id. at 35;
5 C.F.R. § 1201.22(b)(1). On December 13, 2017, Mr. Davie
or someone at his address of record received the decision.
S. Appx. 13.
On February 10, 2018, Mr. Davie appealed to the
Board. S. Appx. 36–37. The administrative judge (AJ) is-
sued an Order on Timeliness, noting Mr. Davie’s appeal ap-
peared to be untimely and ordering Mr. Davie to provide
evidence and/or argument showing his appeal was timely
filed or that there was good cause for the delay. S. Appx.
39–43. Mr. Davie did not respond to the Order. S. Appx.
12. OPM moved to dismiss, and the AJ issued an initial
decision dismissing the appeal as untimely. Id. at 11–21.
1 Honorable Mark C. Scarsi, District Judge, United
States District Court for the Central District of California,
sitting by designation.
2 “S. Appx.” refers to the Supplemental Appendix at-
tached to Respondent’s Informal Brief.
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DAVIE v. MSPB 3
In December 2018, Mrs. Davie filed a petition for re-
view of the initial decision and a motion to substitute her-
self as the appellant because of Mr. Davie’s death in June
2018. S. Appx. 3; S. Appx. 25; S. Appx. 45–48. The Board
issued a final order substituting Mrs. Davie as the appel-
lant, denying her petition for review, and affirming the in-
itial decision. S. Appx. 1–9. Mrs. Davie appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
D ISCUSSION
We must affirm final orders or decisions of the Board
unless the Board’s actions, findings, or conclusions are
“(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).
Mrs. Davie argues Mr. Davie was late to elect a survi-
vor annuity benefit after his remarriage to Mrs. Davie be-
cause money was improperly being sent to his ex-wife.
Appellant’s Informal Br. 2–3. While this argument is rele-
vant to the timeliness of Mr. Davie’s survivor annuity ben-
efit election, it is irrelevant to the issue currently on
appeal, which is whether the Board erred by dismissing as
untimely Mr. Davie’s appeal of OPM’s final decision.
Mr. Davie never submitted information on the timeliness
of his appeal to the Board, nor does Mrs. Davie do so now.
Id. at 1–3. Because the Board had no evidence or argu-
ments that Mr. Davie’s appeal was timely filed or that
there was good cause for delay during the period between
the date OPM issued its final decision (December 7, 2017)
and the date Mr. Davie appealed OPM’s final decision
(February 10, 2018), its decision to dismiss the appeal as
untimely is supported by substantial evidence and in ac-
cordance with the law. 5 C.F.R. § 1201.56(b)(2)(i)(B).
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DAVIE v. MSPB 4
CONCLUSION
We have considered Mrs. Davie’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Board’s dismissal of Mr. Davie’s appeal as untimely.
AFFIRMED
COSTS
No costs.
Case: 24-2318 Document: 31 Page: 4 Filed: 05/08/2025

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