Augustine v. Cardinali, Petitioner, v. Department of the Army, Respondent, 909 F.2d 1495 (Fed. Cir. 1990)

The final decision of the Merit Systems Protection Board in docket No. DC07528610245, dismissing as untimely Rose N. Cardinali's petition for review of the initial board decision, is affirmed.

OPINION

Even if accepted, neither of Mrs. Cardinali's arguments excuses her delay. First, even if grief over her husband's loss incapacitated her for a full year rather than the five months assumed by the board, ten additional months elapsed before she filed her petition. Second, Mrs. Cardinali's multiple telephone calls to her attorney do not negate the fact that she remains responsible for his inaction. See Johnson v. Department of the Treasury, 721 F.2d 361, 365 (Fed. Cir. 1983). Moreover, even if those calls constituted reasonably prudent action, they could only excuse the filing delay for the period April of 1988 through July of 1989. But Mrs. Cardinali did not file her petition until late September of 1989, well beyond the thirty-five day limit. See 5 C.F.R. Sec. 1201.114(d) (1989).

We sympathize with Mrs. Cardinali's loss and abhor what she describes as her attorney's inexcusable neglect of her case. But ignoring the board's filing requirements is not the appropriate recourse. Accordingly, we affirm its decision. See 5 U.S.C. § 7703(c) (1988); Phillips v. United States Postal Service, 695 F.2d 1389, 1390 n. 2 (Fed. Cir. 1982).