Joseph E. CANOLES, Petitioner, v. DEPARTMENT OF THE AIR FORCE, Respondent, 34 F. App'x 679

Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge MICHEL. PROST, Circuit Judge. Joseph E. Cañóles (“Cañóles”) petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that he untimely filed for firefighter retirement coverage and that he was not prevented by circumstances beyond his control from making a timely request. We reverse and remand. BACKGROUND Employees of the federal government are eligible for a special retirement program if they qualify as law enforcement officers or firefighters. See 5 U.S.C. § 8836(c) (2000).

In particular, federal law enforcement officers and firefighters may receive a full retirement annuity when they reach fifty years of age and complete twenty years of service. See 5 U.S.C. § 8336(c)(1). Status as a firefighter is determined by an employee’s position or duties. 5 C.F.R. § 831.902 (1997). It was not until January 19, 1988, however, that the Office of Personnel Management (“OPM”) issued regulations setting forth the method for obtaining retirement credit for law enforcement and firefighter service.

From August 1, 1967, until Canoles retired on August 24, 1990, he was employed by the Department of Air Force (“Air Force”). Canoles v. Dep’t Air Force, 0831-00-0446-1-1, at 1 (“Final Decision”). Prior to May 21, 1990, the Air Force requested the OPM determine if Candes was entitled to service credit as a firefighter under § 8336(c). Id. at 2. On May 21, 1990, the OPM found that Candes was not entitled to such credit. Id. Candes timely requested reconsideration, and on July 2, 1992, the OPM again denied Canoles service credit as a firefighter. Id. Candes appealed the OPM’s decision to the Board.

In a decision dated October 16,1997, the administrative judge found that the Board did not have jurisdiction over the OPM’s reconsideration decision. Canoles v. Office of Pers. Mgmt., AT-0831-97-0581-I-1 (MSPB October 16, 1997) (“Initial Decision”). In particular, the administrative judge held that 5 C.F.R. § 831.910 does not grant the Board jurisdiction over an agency initiated determination regarding firefighter retirement service credit. Id. at 3.

The administrative judge, however, informed Canoles that 5 C.F.R. § 831.906 provides a procedure for an individual to request a determination regarding such service credit. Id. Specifically, she noted, “I find nothing in those regulations to divest the appellant oí his right to avail himself of those procedures, including the right to present evidence at the initiation of the process, merely because the agency has initiated a determination from the OPM.” Initial decision at 9.

Following the administrative judge’s suggestion, on March 4, 1999, Canoles requested firefighter service credit from the Air Force for his years of service from 1967 through 1990. Final Decision at 3. On February 25, 2000, the Air Force denied Cañóles’ request because it was not timely. Cañóles appealed the decision to the Board. On March 12, 2001, the administrative judge affirmed the Air Force’s decision. The administrative judge found that

(1) Canoles had not made a request for service credit under 5 U.S.C. § 8336(

c) in late 1989 or early 1990;

(2) Canoles’ May 21, 1990, request to the OPM for reconsideration was not a valid request for service under 5 C.F.R. § 831.906; and

(3) Canoles had not shown that he was prevented by circumstances beyond his control from making a timely request. The administrative judge’s decision became final on April 16, 2001, and Candes filed a timely appeal to this court. We have jurisdiction under 28 U.S.C. § 1295 and 5 U.S.C. § 7703.

DISCUSSION The Board’s decision must be sustained unless it is found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rale or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. 7703(c) (2000). The substantial evidence standard requires this court to determine whether a reasonable person might be able to conclude that the evidentiary record supports the Board’s decision. On-Line Careline v. Am. Online, Inc., 229 F.3d at 1080, 1085, 56 USPQ2d at 1471, 1475 (Fed.Cir.2000).

This case does not involve whether Candes qualifies for firefighter service credit for positions he held from 1967 until his retirement in 1990, but rather only whether he is time barred from seeking review of whether his service in fact qualified. It appears it was the administrative judge’s view that if Cañóles initiated his request to the agency within one-year of her 1997 decision, that request would not be time-barred as to a determination of whether his years of service between 1967-1990 qualified for firefighter service.

Thus, the specific issue before this court is whether the fact that Candes took 15 rather than 12 months to initiate his action following the 1997 decision bars review. According to 5 C.F.R. § 831.906(

f) an agency head or the OPM may extend the time limit for filing if an individual shows that he or she was prevented by circumstances beyond his or her control from making the request within the time limit. The circumstances in this particular case support such an outcome. In 1997, when the administrative judge issued her decision, she informed Cañóles that 5 C.F.R. § 831.906 provided a procedure for Cañóles to request a determination regarding service credit.

Based on the regulation Candes, in order to file a new request, was required to compile information regarding positions he had held decades earlier on military bases long since closed. This decision was based on an appeal to the OPM by Candes dating back to 1990. Thus, we conclude that, under the particular circumstances in this case, Cañóles’ 1999 request to his agency head is not time barred. Elias v. Dep’t of Defense, 114 F.3d 1164 (Fed.Cir.1997).

For the foregoing reasons we reverse the administrative judge’s decision and remand for a determination of whether Cañóles’ service or duties with the Air Force qualified for firefighter service retirement credit. . Although the decision was issued on July 2, 1992, Candes did not appeal until 1997. Candes maintains that he did not receive the decision until 1997. The issue of whether he made a timely appeal in 1997 is not before us. . The administrative judge denied Cañóles' request for a hearing because she concluded that there was no factual dispute regarding the timeliness issue. Final Decision at 2. .

In fact, the government, at oral argument, appears to agree with this view. . The government argues, and the dissent agrees, that the appellant was required to file a new claim within twelve months of the 1997 dismissal by the MSPB. There was no such time limit. The only existing time limit required appellant to make his initial filing within twelve months of retirement. The Air Force did so on his behalf when it requested that OPM make a service credibility determination. 5 C.F.R. § 831.905 (1989). That satisfied the original statutory time limit. Henry v. Dep’t of Justice, 157 F.3d 863, 865 (Fed.Cir. 1998).

To be sure, appellant could properly be required to continue to pursue his claim, as he did until the 1997 dismissal. But he received no notice from the government, until this proceeding commenced fifteen months later, that the government believe he was obligated to refile thereafter within twelve months of the (improper) 1997 dismissal for lack of jurisdiction by the Board. The Defense Department’s refusal to receive appellant’s 1999 filing was an abuse of discretion under the circumstances of this case.