Case: 23-1904 Document: 23 Page: 1 Filed: 04/04/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LUIS B. QUESADA,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2023-1904
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DC-0831-19-0488-I-1.
`______________________
`
`Decided: April 4, 2024
`______________________
`
`LUIS BRIGIDO QUESADA, SR., Lima, Peru, pro se.
`
`
` ALISON VICKS, Commercial Litigation Branch, Civil Di-
`vision, United States Department of Justice, Washington,
`DC, for respondent. Also represented by BRIAN M.
`BOYNTON, PATRICIA M. MCCARTHY.
`______________________
`
`Before LOURIE, DYK, and STOLL, Circuit Judges.
`PER CURIAM.
`
`

`

`Case: 23-1904 Document: 23 Page: 2 Filed: 04/04/2024
`
`2
`
`QUESADA v. OPM
`
`Former USAID employee Luis B. Quesada filed an ap-
`peal to the United States Merit Systems Protection Board
`(“the Board”) from an Office of Personnel Management
`(“OPM”) decision in 2009 confirming the accuracy of the
`amount of his civil service retirement annuity. The Board
`found that Quesada had failed to timely seek reconsidera-
`tion of the OPM decision, and thus affirmed the OPM deci-
`sion. Quesada v. Off. of Pers. Mgmt., MSPB Docket No.
`DC-0831-19-0488-I-1, Initial Decision (M.S.P.B. May 28,
`2019), S.A.1 1–8 (“Decision”). For the reasons provided be-
`low, we affirm.
`
`BACKGROUND
`Quesada was a USAID-Peru employee from May 16,
`1966 through March 3, 1972 when he was terminated due
`to a reduction in force. S.A. 9–10. Quesada began to re-
`ceive federal retirement annuity benefits in 2008. S.A.
`11–15. On May 28, 2009, in response to an inquiry from
`Quesada, OPM issued an initial decision confirming its
`computation of his civil service retirement annuity. S.A.
`16–19. The letter informed Quesada that (a) if he believed
`the calculation was incorrect, he should contact USAID to
`correct his employment records, and (b) he could seek re-
`consideration of OPM’s decision within 30 days. Id.;
`5 C.F.R. § 831.109(e)(1).
`On June 26, 2009, OPM received a letter from Quesada
`requesting an unspecified amount of additional time to
`seek reconsideration while he worked to obtain information
`from USAID. S.A. 20. Quesada and USAID communicated
`regarding his employment records between 2009 and 2012.
`See, e.g., S.A. 21–22. On January 25, 2012, USAID in-
`formed Quesada that it had searched its records but was
`unable to substantiate the figures Quesada had cited in his
`
`
`1 “S.A.” refers to the supplemental appendix filed con-
`currently with the government’s informal responsive brief.
`
`

`

`Case: 23-1904 Document: 23 Page: 3 Filed: 04/04/2024
`
`QUESADA v. OPM
`
`3
`
`communications. S.A. 22. It also explained that he had
`failed to timely request reconsideration of OPM’s decision
`and, if he still sought reconsideration, would need to ex-
`plain his delay in filing. Id.
`On January 30, 2012, Quesada sent a letter to OPM
`again requesting an unspecified amount of additional time
`to seek reconsideration while he communicated with
`USAID concerning changing his employment records. S.A.
`23. In November 2017, OPM sent a letter to Quesada in-
`forming him that the letter constituted OPM’s final deci-
`sion upholding the May 2009 annuity calculation because
`Quesada had not requested reconsideration of said decision
`and denying any additional extension of time. S.A. 24. On
`January 25, 2018, Quesada responded to the letter, re-
`questing reconsideration of the May 2009 initial decision.
`S.A. 25–26. OPM responded in October 2018, explaining
`that Quesada had failed to request reconsideration in a
`timely manner and pointing out that he had not submitted
`any additional information in the over nine years that had
`passed since the initial decision. S.A. 27.
`On May 6, 2019, Quesada appealed to the Board. He
`argued that OPM had miscalculated his retirement annu-
`ity amount. S.A. 28–32. He acknowledged that he had not
`sought reconsideration within 30 days of the May 28, 2009
`letter, but argued that the delay should have been excused
`because it was due to his inability to obtain information
`from USAID. S.A. 41–51. OPM responded, requesting that
`the Board dismiss the appeal because Quesada’s request
`for reconsideration was untimely. S.A. 33. According to
`OPM, in June 2009, Quesada had timely requested a 30-
`day extension to respond to the May 2009 letter, making
`his request for reconsideration due by July 30, 2009. Id.
`However, argued OPM, he did not request reconsideration
`until January 25, 2018. Id.
`The Board found that Quesada’s request for reconsid-
`eration was untimely. Decision at S.A. 4. It explained that
`
`

`

`Case: 23-1904 Document: 23 Page: 4 Filed: 04/04/2024
`
`4
`
`QUESADA v. OPM
`
`a request for reconsideration must be received by OPM
`within 30 calendar days from the date of OPM’s initial de-
`cision, but that that time limit may be extended when an
`individual shows (a) that he was not notified of the time
`limit and was not otherwise aware of it, or (b) that circum-
`stances beyond his control prevented him from making a
`request within the time limit. Id. at 4–5 (citing 5 C.F.R.
`§ 831.109(e)). The Board stated that it could reverse an
`OPM final decision denying a waiver of the time limit only
`if OPM’s denial was unreasonable or an abuse of discretion.
`Id. at S.A. 5 (citing Meister v. Office of Personnel Manage-
`ment, 52 M.S.P.R. 508, 513 (M.S.P.B. Jan. 28, 1992)). And
`the appellant has the burden of proving by a preponder-
`ance of the evidence that his request for reconsideration or
`waiver was timely or that OPM should have extended the
`time limit. Id. (citing 5 C.F.R. § 1201.56; Sanderson v. Of-
`fice of Personnel Management, 72 M.S.P.R. 311, 317
`(M.S.P.B. Nov. 15, 1996), aff’d without opinion, 129 F.3d
`134 (Fed. Cir. 1997)).
`The Board found that Quesada had failed to show that
`OPM erred in not waiving the time for him to seek recon-
`sideration. Decision at S.A. 5. The Board noted that both
`OPM and USAID had notified him of the need to timely file
`a request for reconsideration. Id. (citing S.A. 17, 22). In
`his letters to OPM requesting additional time, the Board
`found that Quesada had stated that he was unable to re-
`quest reconsideration because he did not have any addi-
`tional evidence that OPM sought. It concluded that that
`explanation showed that Quesada “failed to request recon-
`sideration, not because of circumstances beyond his con-
`trol, but because he did not have sufficient evidence to
`establish his claim.” Id. at S.A. 6. It therefore found that
`OPM’s decision not to waive the time limit for requesting
`reconsideration was not unreasonable or an abuse of dis-
`cretion, thus affirming its final decision. Id. It went on to
`conclude that, even had Quesada timely requested
`
`

`

`Case: 23-1904 Document: 23 Page: 5 Filed: 04/04/2024
`
`QUESADA v. OPM
`
`5
`
`reconsideration, the OPM decision should be affirmed on
`the merits. Id. at S.A. 6–7.
`Quesada appeals. We have jurisdiction pursuant to
`5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
`DISCUSSION
`We must affirm a decision from the Board unless it was
`(1) arbitrary, capricious, an abuse of discretion, or other-
`wise not in accordance with law; (2) obtained without pro-
`cedures required by law, rule, or regulation having been
`followed; or (3) unsupported by substantial evidence.
`5 U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy,
`727 F.2d 1535, 1537 (Fed. Cir. 1984).
`A request for reconsideration of an OPM decision must
`be received by OPM within 30 calendar days of the original
`decision. 5 C.F.R. § 831.109(e)(1). That time limit may be
`extended when an individual shows (a) “that he/she was
`not notified of the time limit and was not otherwise aware
`of it,” or (b) “that he/she was prevented by circumstances
`beyond his/her control from making the request within the
`time limit.” 5 C.F.R. § 831.109(e)(2).
`There is no dispute that OPM did not receive a request
`for reconsideration from Quesada within 30 days of the
`original decision. Indeed, it did not receive a request for
`reconsideration until January 25, 2018, almost a decade af-
`ter the deadline had passed. S.A. 25–26. Quesada does not
`contest that he was notified of the time limit, which is evi-
`denced through letters from both OPM and USAID, as well
`as his own request for extension of the time limit. S.A.
`16–19, 20, 22. Thus, in order to prevail, Quesada had the
`burden to show that circumstances prevented him from
`making a timely request for reconsideration.
`On appeal, Quesada does not appear to address OPM’s
`denial of his reconsideration request or the Board’s uphold-
`ing of that denial. But given that Quesada is appearing pro
`se, we still opt to consider his argument before the Board
`
`

`

`Case: 23-1904 Document: 23 Page: 6 Filed: 04/04/2024
`
`6
`
`QUESADA v. OPM
`
`that circumstances beyond his control prevented him from
`making a request within the time limit.
`However, as the Board found, the evidence shows that
`Quesada failed to timely request reconsideration not be-
`cause he was waiting for information from USAID, but “be-
`cause he did not have sufficient evidence to establish his
`claim.” Decision at S.A. 6; see also S.A. 41 (Quesada assert-
`ing that he did not timely submit his request for reconsid-
`eration “because USAID refused to acknowledge that its
`report sent to OPM was not truthful, proportional, logical,
`or reasonable”). That is consistent with the record. De-
`spite an “extensive search” by USAID, it informed Quesada
`that it was “unable to substantiate the earnings figures” he
`had mentioned. S.A. 22. It additionally explained that it
`had “already complied with providing the information [it
`had] at the OPM office in Washington and unfortunately
`[had] no additional information to provide.” S.A. 21. In-
`deed, Quesada then informed OPM that USAID had “re-
`fused to change the documents forwarded to OPM.” S.A.
`24; see also S.A. 20 (Quesada informing OPM that USAID
`did “not have anything more to inform OPM”). Even at the
`time of his eventual request for reconsideration, Quesada
`provided no new evidence. S.A. 27. Thus, Quesada has
`failed to show that his failure to timely request reconsider-
`ation was due to circumstances beyond his control. Under
`our standard of review, we must therefore affirm.
`CONCLUSION
`We have considered Quesada’s remaining arguments
`and find them unpersuasive. For the foregoing reasons, we
`affirm.
`
`AFFIRMED
`COSTS
`
`No costs.
`
`
`