NOTE: This disposition is nonprecedential.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 

______________________ 

KENNETH E. MUCHA, Mesa, AZ, pro se.

ALBERT S. IAROSSI, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., BRIAN A.

MIZOGUCHI. 

______________________ 

Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit 

Judges.
2 MUCHA v. OPM

PER 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 reconsideration. 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 responding 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 approximately three months after his deadline to file such a 

request. Mr. Mucha’s request for reconsideration offered 

no explanation for his delayed response. OPM subsequently dismissed the request as untimely filed. 
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 determination to this Court. 

DISCUSSION

This Court must affirm a decision from the Board unless 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 
4 MUCHA v. OPM

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 circumstances that prevented him from making a timely request. 

Mr. Mucha’s request for reconsideration did not provide 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.