Esteban A. Mendoza, Petitioner, v. Office of Personnel Management, Respondent, 918 F.2d 187 (Fed. Cir. 1990)

The decision of the Merit Systems Protection Board (Board), dated February 9, 1990, Docket No. SE08318910285, dismissed as untimely Esteban A. Mendoza's petition for review from the initial decision of the Board. We affirm.

OPINION

Mr. Mendoza applied for a retirement annuity under the Civil Service Retirement Act (CSRA). His application was denied on reconsideration by Office of Personnel Management (OPM) and he appealed to the Board. In the initial decision of the Board, dated June 5, 1989, the Administrative Judge determined that Mr. Mendoza failed to demonstrate that he had at least five years of creditable civilian service in a position covered by the CSRA, and therefore failed to establish eligibility for the retirement annuity. 5 U.S.C. § 8333(a) (1988). Mr. Mendoza did not appeal to the full Board within the 35-day limit governing petitions for review and, as a result, the initial decision became final on July 10, 1989. See, 5 C.F.R. Sec. 1201.114 (1989).

It is clear from the record that Mr. Mendoza's petition for review, dated July 19, 1989, and received by the Board on July 31, 1989, was untimely filed. In addition, Mr. Mendoza offered no showing of good cause for the untimely filing. Under these circumstances, the Board's refusal to accept Mr. Mendoza's untimely petition was reasonable, and was not arbitrary, capricious, or an abuse of discretion.