Case: 24-2318 Document: 31 Page: 1 Filed: 05/08/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ OLIVIA C. DAVIE, ON BEHALF OF HAROLD E.

DAVIE, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2024-2318 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0831-18-0327-I-1. ______________________ Decided: May 8, 2025 ______________________ OLIVIA C. DAVIE, Apple Valley, CA, pro se.

KELLY WINSHIP, Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Case: 24-2318 Document: 31 Page: 2 Filed: 05/08/2025

2 DAVIE v. MSPB

Before MOORE, Chief Judge, CUNNINGHAM, Circuit Judge, and SCARSI, District Judge. 1 PER CURIAM.

Olivia Davie appeals a final order of the Merit Systems Protection Board (Board) dismissing her late husband’s ap- peal of an Office of Personnel Management (OPM) decision as untimely filed and denying her petition for review. For the following reasons, we affirm.

BACKGROUND On December 7, 2017, OPM issued a final decision denying as untimely Harold Davie’s request to elect a sur- vivor annuity benefit for his wife, Mrs. Davie. S. Appx. 34– 35. 2 OPM notified Mr. Davie of his right to appeal to the Board and explained an appeal must be filed within 30 cal- endar days after the date of the OPM decision, or 30 days after receipt of the decision, whichever was later. Id. at 35; 5 C.F.R. § 1201.22(b)(1). On December 13, 2017, Mr. Davie or someone at his address of record received the decision.

S. Appx. 13.

On February 10, 2018, Mr. Davie appealed to the Board. S. Appx. 36–37. The administrative judge (AJ) is- sued an Order on Timeliness, noting Mr. Davie’s appeal ap- peared to be untimely and ordering Mr. Davie to provide evidence and/or argument showing his appeal was timely filed or that there was good cause for the delay. S. Appx. 39–43. Mr. Davie did not respond to the Order. S. Appx. 12. OPM moved to dismiss, and the AJ issued an initial decision dismissing the appeal as untimely. Id. at 11–21.

1 Honorable Mark C. Scarsi, District Judge, United States District Court for the Central District of California, sitting by designation.

2 “S. Appx.” refers to the Supplemental Appendix at- tached to Respondent’s Informal Brief.

Case: 24-2318 Document: 31 Page: 3 Filed: 05/08/2025

DAVIE v. MSPB 3

In December 2018, Mrs. Davie filed a petition for re- view of the initial decision and a motion to substitute her- self as the appellant because of Mr. Davie’s death in June 2018. S. Appx. 3; S. Appx. 25; S. Appx. 45–48. The Board issued a final order substituting Mrs. Davie as the appel- lant, denying her petition for review, and affirming the in- itial decision. S. Appx. 1–9. Mrs. Davie appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).

DISCUSSION We must affirm final orders or decisions of the Board unless the Board’s actions, findings, or conclusions are “(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).

Mrs. Davie argues Mr. Davie was late to elect a survi- vor annuity benefit after his remarriage to Mrs. Davie be- cause money was improperly being sent to his ex-wife.

Appellant’s Informal Br. 2–3. While this argument is rele- vant to the timeliness of Mr. Davie’s survivor annuity ben- efit election, it is irrelevant to the issue currently on appeal, which is whether the Board erred by dismissing as untimely Mr. Davie’s appeal of OPM’s final decision.

Mr. Davie never submitted information on the timeliness of his appeal to the Board, nor does Mrs. Davie do so now. Id. at 1–3. Because the Board had no evidence or argu- ments that Mr. Davie’s appeal was timely filed or that there was good cause for delay during the period between the date OPM issued its final decision (December 7, 2017) and the date Mr. Davie appealed OPM’s final decision (February 10, 2018), its decision to dismiss the appeal as untimely is supported by substantial evidence and in ac- cordance with the law. 5 C.F.R. § 1201.56(b)(2)(i)(B).

Case: 24-2318 Document: 31 Page: 4 Filed: 05/08/2025

4 DAVIE v. MSPB

CONCLUSION We have considered Mrs. Davie’s remaining arguments and find them unpersuasive. Accordingly, we affirm the Board’s dismissal of Mr. Davie’s appeal as untimely.

AFFIRMED COSTS No costs.