Fallore v. Office of Personnel Management , 176 F. App'x 106 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3095
MANOLITO C. FALLORE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: April 6, 2006
__________________________
Before MAYER, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
Manolito C. Fallore appeals the final decision of the Merit Systems Protection
Board, affirming the Office of Personnel Management’s (“OPM”) dismissal of his request
for reconsideration as untimely. Fallore v. Office of Personnel Mgmt., 97 M.S.P.R. 680(2004). We affirm.
In an October 19, 2001, initial decision, OPM denied Fallore’s request for a
survivor annuity. Fallore requested reconsideration in January 2003, arguing that he
was prevented from filing within the required 30 days, see 5 C.F.R. § 831.109(e)(1),
because he did not receive notice until December 27, 2002 because the initial decision
was “missent.” OPM denied his request as untimely, finding that Fallore did not set
forth sufficient reasons to justify a filing extension. On appeal to the board, the
administrative judge (“AJ”) affirmed OPM’s dismissal, stating that Fallore “did not show
that he was not notified of the time limit, or that circumstances beyond his control
prevented him from making a timely request.” Fallore v. Office of Personnel Mgmt.,
SE0831030364-I-1 (MSPB Oct. 30, 2003) (applying 5 C.F.R. § 831.109(e)(2)). In
considering Fallore’s petition for review, the two reviewing board members disagreed on
the disposition of the petition, and the AJ’s decision became final.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule or regulation having been followed; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000). Even if Fallore received notice of OPM’s
initial decision thirteen months late, the record supports the finding that the delay was
caused by Fallore’s failure to notify OPM of his change of address or to take other
reasonable steps to ensure that he received his mail. Because he failed to exercise
appropriate diligence, the board properly affirmed OPM’s dismissal of his petition for
reconsideration.
05-3095 2