Resumadero v. Opm

Case: 25-1361 Document: 21 Page: 1 Filed: 01/12/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ LYNDA DE SAN JUAN RESUMADERO, Petitioner v. OFFICE OF PERSONNEL MANAGEMENT, Respondent ______________________ 2025-1361 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0831-22-0093-I-1. ______________________ Decided: January 12, 2026 ______________________ LYNDA DE SAN JUAN RESUMADERO, San Narciso, Zam- bales, Philippines, pro se.

BRENDAN DAVID JORDAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by LISA LEFANTE DONAHUE, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before PROST, CHEN, and STARK, Circuit Judges.

Case: 25-1361 Document: 21 Page: 2 Filed: 01/12/2026

2 RESUMADERO v. OPM

PER CURIAM.

Lynda de San Juan Resumadero appeals a decision by the Merit Systems Protection Board (Board) affirming the Office of Personnel Management’s (OPM’s) finding that she is not entitled to a Civil Service Retirement System (CSRS) survivor annuity. See Resumadero v. Off. of Pers. Mgmt., No. SF-0831-22-0093-I-1, 2024 WL 2050076, at *1 (M.S.P.B. May 7, 2024) (Final Order). For the following reasons, we dismiss the appeal as untimely.

BACKGROUND Ms. Resumadero applied for survivor annuity benefits under CSRS based on her late husband’s federal service in civilian positions with the U.S. Navy in the Philippines from approximately 1946–48 and 1960–82. The full Board concluded that Ms. Resumadero’s late husband, Pedro Re- sumadero, did not qualify for a CSRS annuity because he did not hold a Federal government position covered by CSRS during his final two years of service, and conse- quently, that Ms. Resumadero was not entitled to a CSRS survivor annuity. Final Order, 2024 WL 2050076, at *4–5.

The Board issued its Final Order on May 7, 2024. Id. at *1. The clerk of court received Ms. Resumadero’s peti- tion for review on January 8, 2025. See ECF No. 1 at 5.

This Court has jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION On appeal, the government contends that Ms. Re- sumadero’s petition for judicial review is untimely because it was received more than 60 days after the Board issued its final decision. Informal Response Br. at 17–20. Ms. Re- sumadero does not respond to this argument. See generally Informal Reply Br. (addressing only the merits, not the pe- tition’s timeliness).

We agree with the government that the petition is un- timely. This Court has jurisdiction to review “an appeal Case: 25-1361 Document: 21 Page: 3 Filed: 01/12/2026

RESUMADERO v. OPM 3 from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5.” 28 U.S.C. § 1295(a)(9). Under § 7703(b)(1), “any petition for review shall be filed within days after the Board issues notice of the final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A) (emphasis added). A petition for review is considered filed on the date it is received by the clerk of court. Pinat v. Off. of Pers.

Mgmt., 931 F.2d 1544, 1546 (Fed. Cir. 1991); see also Fed. R. App. P. 25(a)(2)(A)(i).

Ms. Resumadero’s petition was received on January 8, 2025—over eight months after the Board issued its Final Order on May 7, 2024—well past the 60-day deadline. Ac- cordingly, the petition is untimely.

While the Supreme Court has explained that “§ 7703(b)(1)’s deadline is non-jurisdictional,” and that “nonjurisdictional [timing rules] are presumptively subject to equitable tolling,” Harrow v. Dep’t of Def., 601 U.S. 480, (2024) (alteration in original), Ms. Resumadero has not addressed the untimeliness of her petition, let alone demonstrated that extraordinary circumstances stood in her way. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (litigant seeking equitable tolling generally “bears the bur- den of establishing two elements: (1) that he has been pur- suing his rights diligently, and (2) that some extraordinary circumstance stood in his way”). Thus, even assuming eq- uitable tolling were available in § 7703(b)(1) cases, 1

1 The government argues that § 7703(b)(1) is not subject to equitable tolling even if the time limit is not con- sidered jurisdictional. See Informal Response Br. 17–19 (citing Oja v. Dep’t of the Army, 405 F.3d 1349, 1357–60 (Fed. Cir. 2005)). Because the outcome of this case does not turn on the availability of equitable tolling in § 7703(b)(1) Case: 25-1361 Document: 21 Page: 4 Filed: 01/12/2026

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Ms. Resumadero has not shown that equitable tolling ap- plies here.

CONCLUSION For the foregoing reasons, we dismiss Ms. Re- sumadero’s appeal as untimely and do not reach the mer- its.

DISMISSED COSTS No costs.

cases generally, we express no opinion on that question here.