Unpublished Dispositionvictoriano F. Filamor, Petitioner, v. Office of Personnel Management, Respondent, 826 F.2d 1072 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 826 F.2d 1072 (Fed. Cir. 1987) July 13, 1987

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.

PER CURIAM.


DECISION

The final order of the Merit Systems Protection Board, Docket Number SF08318410336, dismissing Filamor's review petition for untimeliness is affirmed.

OPINION

The Office of Personnel Management (OPM) determined, after reconsideration, that Filamor was not eligible for a retirement annuity. On appeal to the Board the presiding official, in an initial decision dated March 16, 1984, affirmed OPM's reconsideration decision. Although Filamor was informed that he must submit by April 20, 1984 any petition for review of the initial decision, he did not file his petition for review until July 28, 1986. The Board provided Filamor with an opportunity to show cause why his appeal should not be dismissed for untimeliness. In response, Filamor contended only that it was the Board's responsibility to assist him in pursuing his claim inasmuch as his representative had died in August of 1983, approximately eight months prior to the initial decision in his appeal.

Petitions to the Board for review of an initial decision must be filed within 35 days of the issuance of the initial decision. 5 C.F.R. Sec. 1201.114(b) (1983). The Board may, however, extend this time limit in an individual case upon a showing of good cause. 5 C.F.R. Sec. 1201.113(d) (1986). Under 5 C.F.R. Sec. 1201.56(a) (2) (1986), the petitioner has the burden of proof as to the timeliness of the petition for review. Whether good cause exists is a matter committed to the discretion of the Board and this court will not reverse the Board's decision unless it is arbitrary or capricious. Phillips v. United States Postal Serv., 695 F.2d 1389, 1390-91 (Fed. Cir. 1983). We affirm the Board's final order because it is not arbitrary nor capricious.