Augusto T. Cezar, Petitioner, v. Office of Personnel Management, Respondent, 965 F.2d 1064 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 965 F.2d 1064 (Fed. Cir. 1992) April 15, 1992

Before MICHEL, PLAGER and LOURIE, Circuit Judges.



Augusto T. Cezar appeals the final decision of the Merit Systems Protection Board affirming the denial by the Office of Personnel Management of his application for a civil service retirement annuity. Because the appeal was filed untimely, we dismiss.


On August 26, 1991, the Board issued its final opinion and order in Cezar's case. The return receipt indicates that the Board's order was received by Cezar on September 16, 1991. Thirty-five days later, on October 21, 1991, the court received Cezar's petition for review.

Pursuant to 5 U.S.C. § 7703(b) (1), "any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board" (emphasis added). Cezar's petition was filed five days late. OPM argues that the appeal should be dismissed as untimely. We agree. See Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed. Cir. 1991). Accordingly, we dismiss the appeal as untimely.

We have also examined the record before us and note that Cezar did not serve at least one of his last two years of federal service in a position covered under the Civil Service Retirement Act. Thus, it appears that, in any event, Cezar did not meet his burden of producing evidence to support his annuity claim. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987).