Robert C. Mckenzie, Petitioner, v. Office of Personnel Management, Respondent, 833 F.2d 1022 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 833 F.2d 1022 (Fed. Cir. 1987) October 2, 1987

Before FRIEDMAN and DAVIS, Circuit Judges, and COWEN, Senior Circuit Judge.

PER CURIAM.


DECISION

Petitioner appeals a final decision of the Merit Systems Protection Board, No. DC07528610432, which held that he failed to establish good cause for waiver of the time required for filing a petition for review. We affirm the board's decision.

OPINION

On July 14, 1986, petitioner filed an appeal from the decision of December 2, 1983, wherein his agency removed him from his position. 5 C.F.R. Sec. 1201.22(b) requires that an appeal be filed within 20 days after the effective date of the action appealed, but in this case, petitioner waited two and a half years to file his appeal.

In response to an order to show good cause for waiver of the time limit, he submitted documentary evidence showing that he had been treated by a psychiatrist since his departure from the agency. The administrative judge reviewed the documentary evidence and found, on the basis of a letter from petitioner's psychiatrist, that petitioner was mentally capable of filing a petition for review sometime before July of 1986. Finding that petitioner had failed to meet his burden of showing good cause to waive the time limit, the administrative judge dismissed his appeal for lack of jurisdiction. This decision was affirmed by the full board which found that petitioner was mentally capable of exercising his appeal right long prior to the time he filed the appeal.

The burden is on the petitioner to establish that he appealed in a timely manner, once he became capable of exercising that right. Alonzo v. Dep't of the Interior, 4 MSPB 262 (1980).

On the basis of the record before us, we find that the decisions of the administrative judge and of the full board are supported by substantial evidence, and hold that the board did not abuse its discretion in finding that petitioner's petition for review was untimely filed. See Phillip v. United States Postal Serv., 695 F.2d 1389, 1390-91 (Fed. Cir. 1983).