Scott E. Darelius v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SCOTT E. DARELIUS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1782
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0842-18-0103-I-1.
______________________
Decided: December 10, 2025
______________________
S COTT E. D ARELIUS , Pawtucket, RI, pro se.
MATTHEW L EWIS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by T ARA K.
HOGAN, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before M OORE, Chief Judge, CHEN and STARK, Circuit
Judges.
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DARELIUS v. OPM 2
P ER CURIAM .
Former Postal Service employee Scott Darelius peti-
tions for review of a final decision of the Merit Systems Pro-
tection Board (Board), affirming the reconsideration
decision of the Office of Personnel Management (OPM)
denying his application for an annuity under the Federal
Employees’ Retirement System (FERS). See Darelius v.
Off. of Pers. Mgmt., No. PH-0842-18-0103-I-1, 2024 WL
490221, at *1 (M.S.P.B. Feb. 7, 2024) (Final Order). For
the following reasons, we dismiss the appeal as untimely
filed.
BACKGROUND
Scott Darelius was employed with the National Guard
for seven months and sixteen days, the U.S. Postal Service
for four years, six months, and twenty-eight days, and the
military for seven years, seven months, and six days.
Appx 10.1 Mr. Darelius applied to OPM for a deferred an-
nuity based on his service, but OPM found that he had not
served five years of creditable civilian service. Id.
Mr. Darelius appealed the decision to the Board. Id.
In the initial decision, the administrative judge also de-
termined that Mr. Darelius’s civil service fell below the
five-year threshold to qualify for an annuity under FERS.
Appx 10, 13. Although Mr. Darelius argued that he should
now be allowed to make the deposits necessary to count his
seven months with the National Guard towards the five
years of service requirement, the administrative judge af-
firmed OPM’s determination that Mr. Darelius’s service in
the National Guard was not creditable as he failed to make
deposits during his service and the regulation permits only
former members who are already eligible for an annuity to
make such deposits. Appx 11 & n.1 (citing 5 C.F.R.
1 “Appx” refers to the appendix filed concurrently
with the government’s informal brief.
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DARELIUS v. OPM 3
§ 842.305(a)). The administrative judge also held that mil-
itary service cannot count towards the required five years
of civilian service. Appx 11. Moreover, while Mr. Darelius
argued that his employment with the Postal Service in fact
lasted until 1993 rather than 1991 as initially reported
(such that his total civilian service, in fact, exceeded five
years), the administrative judge disagreed, finding that
Mr. Darelius’s employment with the Postal Service ended
in June of 1991, because he ceased working for and being
paid by the Postal Service at that time and was not on leave
between the years 1991 and 1993. Appx 11–12. Accord-
ingly, the administrative judge affirmed the denial of
Mr. Darelius’s request for retirement benefits, concluding
that Mr. Darelius “has not presented any evidence showing
that he has served the five years of civilian service neces-
sary to be eligible for a FERS retirement annuity.”
Appx 13.
On February 7, 2024, the full Board issued its Final
Order, denying Mr. Darelius’s petition for review and af-
firming the initial decision, which then became the final
decision of the Board. Final Order, 2024 WL 490221, at *1.
Mr. Darelius filed his appeal to this Court on April 29,
2024. See ECF No. 1.
This Court has jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
On appeal, the government argues that because
Mr. Darelius filed his petition for judicial review with this
Court more than 60 days after the Board issued its final
decision, his petition should be dismissed as untimely. In-
formal Response Br. at 8–11. Mr. Darelius did not file a
reply brief and, thus, has not disputed the government’s
position.
We agree with the government. This Court has juris-
diction to review “an appeal from a final order or final
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DARELIUS v. OPM 4
decision of the Merit Systems Protection Board, pursuant
to sections 7703(b)(1) and 7703(d) of title 5.” 28 U.S.C.
§ 1295(a)(9). Under § 7703(b)(1), “any petition for review
shall be filed within 60 days after the Board issues notice
of the final order or decision of the Board.” 5 U.S.C.
§ 7703(b)(1)(A) (emphasis added). Mr. Darelius filed his
petition on April 29, 2024, see ECF No. 1, over 80 days after
the Board issued its Final Order on February 7, 2024. That
is past the 60-day deadline required by § 7703(b)(1). Ac-
cordingly, we agree with the government that Mr. Dare-
lius’s petition is untimely filed.
With that said, the Supreme Court has explained that
“§ 7703(b)(1)’s deadline is non-jurisdictional,” and “nonju-
risdictional [timing rules] are presumptively subject to eq-
uitable tolling.” Harrow v. Dep’t of Def., 601 U.S. 480, 489–
90 (2024) (alteration in original).2 A petitioner seeking eq-
uitable tolling generally “bears the burden of establishing
two elements: (1) that he has been pursuing his rights dil-
igently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Here, Mr. Darelius has not shown that an extraor-
dinary circumstance contributed to the untimeliness of his
petition. See generally Informal Opening Br. (presenting
2 The Supreme Court declined to address the govern-
ment’s contention that it could rebut that presumption,
leaving that matter for this Court to resolve. Harrow, 601
U.S. at 489–90. The Government argues that the timing
provisions in § 7703(b)—though not jurisdictional—are
nonetheless mandatory, such that equitable tolling does
not apply. See Informal Response Br. 9–10 (citing Oja v.
Dep’t of the Army, 405 F.3d 1349, 1359 (Fed. Cir. 2005)).
Because the outcome of Mr. Darelius’s case does not turn
on the availability of equitable tolling in § 7703(b)(1) cases
generally, we express no opinion.
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DARELIUS v. OPM 5
arguments solely on the merits and omitting mention of the
timeliness of the petition). Thus, even if equitable tolling
were available in § 7703(b)(1) cases, Mr. Darelius fails to
show that equitable tolling applies in his case.3
CONCLUSION
For the foregoing reasons, we dismiss Mr. Darelius’s
appeal as untimely. Accordingly, we do not reach the mer-
its.
DISMISSED
COSTS
No costs.
3 In prior cases with similar circumstances, we have
declined to address whether equitable tolling is available
for § 7703(b)(1). See, e.g., Boyd v. Dep’t of the Treasury, No.
2025-1128, 2025 WL 3096818 (Fed. Cir. Nov. 6, 2025).
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