Kenneth E. Mucha v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH E. MUCHA,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3113
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0831-14-0392-I-1.
______________________
Decided: October 14, 2015
______________________
K ENNETH E. M UCHA, Mesa, AZ, pro se.
ALBERT S. I AROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R., BRIAN A.
MIZOGUCHI.
______________________
Before N EWMAN, CLEVENGER , and O’MALLEY , Circuit
Judges.

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MUCHA v. OPM 2
P ER CURIAM .
Kenneth E. Mucha appeals from a decision of the
Merit Systems Protection Board (“Board”), affirming the
Office of Personnel Management’s (“OPM”) decision to
dismiss Mr. Mucha’s untimely filed request for reconsid-
eration. Mucha v. Office of Pers. Mgmt., DE-0831-14-0392-
I-1 (M.S.P.B. Feb. 3, 2015). Because Mr. Mucha offered no
reason to waive the filing time requirement and the
Board’s decision was not arbitrary or capricious, we
affirm.
BACKGROUND
OPM issued its initial decision on February 11, 2013,
denying Mr. Mucha’s request to provide survivor annuity
benefits to his new spouse because he had not notified the
agency of an election of a reduced annuity with a survivor
benefit within two years of his marriage. The initial
decision advised Mr. Mucha that he must file a request
for reconsideration within 30 days of the date of the
decision letter if he wanted to dispute OPM’s findings.
OPM’s decision letter further explained: “Your written
request for reconsideration must be received by OPM
within 30 calendar days from the date of OPM’s initial
decision. (OPM can extend the time limit if you can show
that you 1) were not notified of the time limit and were
not otherwise aware of it or 2) were prevented from re-
sponding by a cause beyond your control).” Letter from
Office of Pers. Mgmt. to Kenneth Mucha (Feb. 11, 2013).
Thus, OPM must have received Mr. Mucha’s request for
reconsideration no later than March 11, 2013 to be timely.
However, Mr. Mucha did not postmark his request for
reconsideration until June 11, 2013, which was approxi-
mately three months after his deadline to file such a
request. Mr. Mucha’s request for reconsideration offered
no explanation for his delayed response. OPM subse-
quently dismissed the request as untimely filed.

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MUCHA v. OPM 3
Mr. Mucha then filed a timely appeal with the Board,
but still did not provide any reasons for his untimeliness.
The administrative judge notified Mr. Mucha of the
regulations regarding time limits and ordered Mr. Mucha
to explain why his request for reconsideration had been
untimely. Mr. Mucha responded by arguing the merits of
his claim, but did not address the timeliness issue. The
judge affirmed OPM’s decision dismissing Mr. Mucha’s
request for reconsideration as untimely filed. Mr. Mucha
petitioned for review with the Board, providing evidence
concerning the merits of his request for reconsideration,
but again failing to provide any explanation for his delay
in filing the request. Therefore, the Board denied the
petition and affirmed OPM’s initial decision.
Mr. Mucha now appeals the Board’s final determina-
tion to this Court.
D ISCUSSION
This Court must affirm a decision from the Board un-
less it is “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) (2014); see also Hayes v.
Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
OPM’s regulations explicitly require that “[a] request
for reconsideration must be received by OPM within 30
calendar days from the date of the original decision.” 5
C.F.R. § 831.109(e)(1) (2014). OPM has discretion to
excuse a delay in filing a request if the applicant shows
that he was not notified of the time limit and was not
otherwise aware of it, or was prevented from making the
request by circumstances beyond his control. Id. §
831.109(e)(2). Mr. Mucha acknowledged receipt of OPM’s
initial decision letter in his request for reconsideration.
We agree with the Board’s conclusion that Mr. Mucha was
aware of the time limit because the initial decision clearly

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MUCHA v. OPM 4
set forth the time limit requirements. Thus, in order for
the Board to find OPM’s dismissal based on untimeliness
improper, Mr. Mucha had the burden to show circum-
stances that prevented him from making a timely request.
Mr. Mucha’s request for reconsideration did not pro-
vide any evidence for why he was prevented from filing a
timely request. In his June 11, 2013 letter, Mr. Mucha
generally stated that he was getting older and had a lot of
health problems, but he did not explain or argue how
these health problems affected his ability to file a timely
request for reconsideration. In fact, Mr. Mucha never
provided any explanation for his untimeliness throughout
the appeal or review process in front of OPM and the
Board. Substantial evidence supports the Board’s finding
that Mr. Mucha has not shown that circumstances beyond
his control prevented him from filing a timely request.
If a petitioner fails to show lack of knowledge of the
time limit or prevention, “we do not reach the issue of
whether OPM abused its discretion in denying petitioner’s
untimely request for reconsideration.” Azarkhish v. Office
of Pers. Mgmt., 915 F.2d 675, 678 (Fed. Cir. 1990). Here,
Mr. Mucha failed to meet his burden to provide any
evidence on the untimeliness issue. Therefore, the Board
could not have found that OPM abused its discretion in
dismissing the reconsideration request.
Because the record shows that Mr. Mucha did not
provide any evidence to show that he was not notified of
the time limit or was prevented from making the request
by circumstances beyond his control, we cannot say that
the Board was arbitrary or capricious in affirming the
dismissal of the request for reconsideration. We affirm.
AFFIRMED
COSTS
No costs.

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