960 F. 2d 156 - Grino v. Merit Systems Protection Board

Anselmo S. Grino appeals from the final decision of the Merit Systems Protection Board (MSPB or Board)1, dismissing his appeal from the Office of Personnel Management (OPM) as untimely filed. The OPM had rejected Grino's application for a retirement annuity under the Civil Service Retirement System (CSRS). We affirm.

Grino applied to the OPM for a CSRS annuity. OPM denied the request. In its reconsideration opinion, the OPM affirmed its denial because Grino had not demonstrated that he had ever served as an employee in any CSRS-covered position. The several positions pointed to by Grino were not covered by the CSRS.

Grino filed for appeal with the MSPB. His appeal was almost two months late. The MSPB administrative judge notified Grino that he had the burden of proving why the lateness of his appeal should be excused. Grino's response did not address the issue of timeliness of his appeal. The MSPB found that no good cause had been shown for the delay, and dismissed the appeal as untimely filed.

The legal standard by which this court reviews decisions of the MSPB is that the decision must be affirmed 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. On the record before us, there is nothing to suggest that the decision of the MSPB, or of the OPM, was incorrect. Given our standard of review, we must affirm.