NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3008 FELICITAS GUERRERO, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Felicitas Guerrero , of San Juan, San Narciso, Philippines, pro se. Raymond W. Angelo , Attorney, Office of the Ge neral Counsel, Merit Systems Protection Board, of Washington , DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel; and Rosa M. Koppel , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3008

FELICITAS GUERRERO, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Petition for review of the Merit Syst ems Protection Board in SF0831070074-I-1.

___________________________ DECIDED: June 24, 2008

___________________________ Before MICHEL, Chief Judge , and NEWMAN, and LINN, Circuit Judges. NEWMAN, Circuit Judge

.

Mrs. Felicitas Guerrero seeks review of t he decision of the Merit Systems Protection Board, dismissing her survivor annuity cl aim under the Civil Service Retirement Act (“CSRA”) as untimely filed. Gue rrero v. Office of Personnel Mgmt. , SF-0831-07-0074-I-1 (M.S.P.B. July 13, 2007). Mrs. Guerrero states that the B oard overlooked certain factual and evidentiary issues, and that her appeal was ti mely filed. On review of the issues and arguments, we affirm the Board’s decision.2008-3008 2 BACKGROUND Mrs. Guerrero’s deceased spouse Mr. Gu illermo Guerrero was employed as Maintenance Foreman I by the United States Na vy at Subic Bay, Philip pines until his death on May 4, 1991. On May 21, 1997 Mrs. Guerrero applied for survivor annuity benefits based on her late husband’s employment. T he Office of Personnel Management denied her claim on March 27, 1998 because the agency was “unable to locate any service with the Federal government which was subject to [retirement] deductions.” On April 20, 1998 Mrs. Guerrero wrote to OPM for “a formal decis ion be made so I could exercise my right to reconsideration of your informal decision. ” On June 24, 1998 OPM affirmed its decision that Mrs. Guerrero was “not entitled to a su rvivor annuity based on Mr. Guerrero’s death in service” because her deceased spouse “never served in a position subject to the Civil Service Retirement Act.” Approximately eight years later, on July 19, 2006, Mrs. Guerrero wrote to OPM “applying for making deposit to Civil Service Retirement and Disabilit y Fund.” She argued that she was “entitled to making deposit to the CSRA” because her “late spouse’s excepted appointment (indefinite) on 9-15- 58 . . . is now covered under the CSRA.” By letter dated September 21, 2006 OPM declined to consider Mrs. Guerrero’s application, and explained: Our records indicate that your Applic ation for Death Benefits was disallowed on 03-27-98. On 04-20-98, you asked for and were given the right of reconsideration. On 06-24-98, the Reconsiderat ion Staff affirmed the decision of disallowance and you were adv ised of your right to appeal to the Merit Systems Protection Board. The service was not subject to reti rement deductions and was not creditable under Federal law. Therefor e, it is not possible for you to apply to deposit or reopen your claim since there has been no change in the law, which would allow you to qualify for a pension. Please understand [sic] accept this decision, which is final and will not be changed in the future.2008-3008 3 Accordingly, this office will not consider your case again. Any further request for review must be addressed to the Merit Systems Protection Board. On October 18, 2006 Mrs. Guerrero filed an appeal to the MSPB, stating that she was appealing OPM’s September 21, 2006 decisi on. On November 13, 2006 OPM moved to dismiss Mrs. Guerrero’s appeal on the ground that the appeal was un timely filed because the agency issued the final decision denying her application on June 24, 1998. On November 20, 2006 the Administrative Judge order ed Mrs. Guerrero to file evidence and/or argument showing that her appeal was filed on time or that good cause existed for any delay in filing. Upon considering Mrs. Gue rrero’s argument that OPM’s September 21, 2006 letter is a reconsideration decision ent itling her to a new appeal, the AJ issued an initial decision on February 2, 2007 dismissing her appeal for untimeli ness, stating that “OPM’s June 24, 1998 reconsideration decision is the only reconsiderat ion decision in the record in this appeal.” The AJ also found that Mrs. Guerrero did not submit any evidence or argument showing good cause for the eight-year delay in filing her appeal. The full Board denied review, and this appeal followed. DISCUSSION A decision of the Board is reviewed to det ermine whether it is "(1) arbitrary, capricious, an abuse of discreti on, or otherwise not in accord ance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evi dence." 5 U.S.C. §7703(c); see Cheeseman v. Office of Personnel Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986). The Board’s regulations require that “ an appeal must be filed no later than 30 days after the effective date, if any, of the acti on being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later.” 5 C.F.R. §1201.22(b)(1).2008-3008 4 “If a party does not submit an appeal within the time set by statute, regul ation, or order of a judge, it will be dismissed as unt imely filed unless a good reason for the delay is shown.” 5 C.F.R. §1201.22(c). Mrs. Guerrero argues that her appeal fil ed on October 18, 2006 was timely. She does not dispute that her prio r application dated May 21, 1997 “for survivor’s annuity” under CSRA was denied by the OPM on March 27, 1998 and that the denial was affirmed on June 24, 1998. However, Mrs. Guerrero argues that her July 19, 2006 letter was a new and separate application “for making a deposit to the [Civil Service Retirement and Disability] Fund based on her s pouse creditable service under the CSRA” and that OPM’s September 21, 2006 letter constituted a new denial of that application on the merits. Mrs. Guerrero states that she is appealing the OPM’s new decision of September 21, 2006. The government responds that Mrs. Guerrero ’s July 19, 2006 application for survivor benefits under the CSRA is the same as her pr ior application in 1997, which was denied by OPM in 1998. The government st ates that the Board correctly interpreted the September 21, 2006 letter as a mere remi nder of OPM’s prior final decision in 1998, and did not constitute a new appealable decision. The Board noted that in her July 19, 2006 letter, Mrs. Guerrero applied for “making deposit to Civil Service Retirement and Dis ability Fund” because her “late spouse’s excepted appointment . . . is now covered under the CSRA.” The Board observed that OPM had denied Mrs. Guerrero’s request for a su rvivor annuity under the CSRA on June 24, 1998 because her deceased spouse “never se rved in a position s ubject to the Civil Service Retirement Act,” and that OPM’s S eptember 21, 2006 letter did not constitute a new decision based on the merits. We discern no reversible error in the Board’s findings2008-3008 5 and rulings. Mrs. Guerrero filed her appeal of OPM’s final decision approximately eight years after the decision. Mrs. Guerrero does not argue that good cause existed for such a delay. The dismissal must be affirmed. No costs.