GREGORIO A. TOQUERO, PETITIONER,

v.

MERIT SYSTEMS PROTECTION BOARD, RESPONDENT

NIES, Chief Judge, concurs in the result.

APPENDIX

UNITED STATES

OFFICE OF PERSONNEL MANAGEMENT

CIVIL SERVICE RETIREMENT SYSTEM

WASHINGTON, D.C. 20415

Information and Instructions on Your Reconsideration Rights

I Information

Reconsideration is OPM’s review of its initial decision in order to verify that all applicable laws and regulations were properly applied.

This notice gives specific instructions on how you may request reconsideration of an initial decision made by OPM’s Retirement and Insurance Group in any case where the decision:

• Affects your rights or interests under the Civil Service Retirement System, except in matters pertaining to disability retirement and annuity overpayments. Different instructions apply to these excep tions; see below for more information. (5 C.F.R., Part 831)

• Denies you basic or optional life insurance coverage under the Federal Employees’ Group Life Insurance Program or denies you the right to change your post-retirement basic life insurance coverage after retirement. (5 C.F.R., Parts 870, 871, 872, and 873)

• Refuses your request to enroll or change enrollment in the Federal or Retired Federal Employees Health Benefits Program. (5 C.F.R., Parts 890 and 891)

• Refuses your request to permit coverage of someone as a family member under the Federal or Retired Federal Employees Health Benefits Program. (5 C.F.R., Parts 890 and 891)

These instructions do not apply to:

• Reconsideration of a disability retirement decision.

• Reconsideration of an initial decision under 5 USC 8336(c) regarding law enforcement or firefighter eligibility.

• Reconsideration of a decision to collect an annuity overpayment.

OPM will give you separate specific instructions and information in the above instances.

• Reconsideration of a claim denied by your health insurance carrier. All such requests for reconsideration should be sent to the address shown in the brochure of your plan.

If you wish general information about benefits, or wish a written decision on another matter, you should write to:

Office of Personnel Management

Employee Service and Records Center

Boyers, PA 16017.

II Procedures

The procedures for requesting reconsideration — as established by Federal regulation — are as follows:

A.Make your request in writing and state that you are requesting reconsideration; if possible, include a copy of the initial decision on which your request is based. Include your name, address, date of birth, claim number (if applicable), name of the health insurance plan (if applicable), and your reason(s) for the request.

B. You must file your written request for reconsideration with OPM within 30 days from the date of OPM’s initial decision (OPM can extend the time limit if you can show that you (1) were not notified of the time limit and were not otherwise aware of it or (2) were prevented from responding by a cause beyond your control.)

C. Send your request for reconsideration to:

Office of Personnel Management

Employee Service and Records Center

Reconsideration Staff

P.O. Box 107

Boyers, PA 16020

USE THIS ADDRESS ONLY FOR CORRESPONDENCE CONCERNING YOUR RECONSIDERATION REQUEST

If you plan to submit additional evidence to support your claim and that evidence is not immediately available, you must:

• Submit a written request for reconsideration within the 30-day time limit; and

• Include in your request for reconsideration a statement that you will be submitting additional evidence, a brief description of the evidence you will submit, your estimate of the date the evidence will be available, and a brief explanation for the delay.

We will acknowledge receipt of your statement and let you know the date after which additional submissions will not be accepted.

Ill Final Decision

After reviewing our initial decision and any new evidence that has been submitted. OPM will send you a final decision in writing. We will send copies of that decision to any competing claimants or to your employing office if applicable.

PLAGER, Circuit Judge,

concurring.

I concur in the decision for the reasons stated by Judge Newman (see Mendoza v. MSPB). In the case before us, the instructions Mr. Toquero received from OPM were confusing at best regarding whether it was necessary to request a reconsideration. No one — not OPM, not the AJ — ever explained or clarified, prior to the dismissal of the appeal by the MSPB, what he must do to have his case considered on the merits. Admittedly OPM has a difficult job, and if it insists that decisions it makes on an application for benefits must be re-made a second time before an applicant can consider the decision final, it is not for this court to say otherwise.

At the same time, there is an obligation on government to make reasonably feasible for the individual the opportunity to ascertain whether his or her rights, including rights to government largess, have been properly determined.1 While all citizens are presumed to know the law, that legal fiction is not equivalent to requiring that an elderly resident of the Philippines must be personally conversant with the intricacies of the Code of Federal Regulations. One might question the wisdom of a petitioner who persists in pursuing appeal after appeal in a case which on its face shows so little promise. But one might equally question the wisdom of a system that permits such pursuit. Congress has provided the system, and it is our job to see that it is administered fairly under the law. This court is continually reviewing pro se appeals by individuals who have been given little help by the form documents the Government issued them. If OPM chooses to improve its standard letters and instructions in order to avoid a recurrence of the problem in this case, all to the good. The fact that few cases may be expected to warrant our intervention detracts not at all from the benefits the general citizenry might derive from clearer and more explicit government guidance in these matters.

. See Charles A. Reich, The New Property After 25 Years, 24 U.S.F. L.Rev. 223 (1990); The New Property, 73 Yale L.J. 733 (1964).