              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.




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