48 F3d 1236 Dela Cruz v. Merit Systems Protection Board

Alejandria G. DELA CRUZ, Petitioner,

No. 94-3269.

United States Court of Appeals, Federal Circuit.

Feb. 9, 1995.

48 F.3d 1236
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

61 M.S.P.R. 133.


Before RICH, NIES, and SCHALL, Circuit Judges.


RICH, Circuit Judge.

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MS. Dela Cruz seeks review of a final decision of the Merit Systems Protection Board (Board), Docket No. SE0831930327-I-1, dismissing Dela Cruz's appeal of an Office of Personnel Management (OPM) decision denying her claim for a survivor annuity under the Civil Service Retirement Act (CSRA) because the Board found that Dela Cruz's appeal was untimely filed without good cause. We affirm.



Ms. Dela Cruz petitioned for review of an initial decision that affirmed a reconsideration decision by the OPM denying her request for a survivor annuity based on her father's federal service. Ms. Dela Cruz was notified that the initial decision would become final on November 5, 1993, unless a petition for review was filed by that date. Ms. Dela Cruz did not file her petition to the Board until November 19, 1993.


The Clerk acknowledged receipt of the appeal but informed Ms. Dela Cruz that she had the burden to show that good cause existed for her untimeliness. See 5 C.F.R. Sec. 1201.114(f). Ms. Dela Cruz did not respond to the clerk's request for a showing of good cause. The Board dismissed her petition for review as untimely and ordered the initial decision to remain the final decision of the Board regarding the merits. This appeal followed.


This court's scope of review of a Board decision is limited by statute. 5 U.S.A. Sec. 7703(c). The Board's decision must be affirmed unless it is arbitrary, capricious, not in accordance with law, obtained without procedures required by rule, law, or regulations, or unsupported by substantial evidence. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Finding no error in the Board's decision, we affirm.