Martinez v. Office of Personnel Management

NOTE: This order is nonprecedential United States Court of AppeaIs for the Federal Circuit MARTA S. MARTINEZ, Petiti0n,er, V. OFFICE OF PERSONNEL MANAGEMENT, Resp0ndent. 2011-3072 .. Petiti0n for review of the Merit Systems Pr0tecti0n B0ard in case n0. DA0831100546-I-1. ON MOTION Before GAJARsA, MAYER, and PROsT, Circuit Judges. PER CUR1AM. ORDER The Office of Pers0rmel Management (OPM) moves to dismiss Marta S. Martinez’s petition for review as un- timely MARTlNEZ V. OPM 2 On October 22, 2010, an administrative judge issued an initial decision, affirming OPM’s denial of lV[artinez’s claims, and notifying Martinez that, absent an appeal to the Board, the decision would become final on November 26, 2010. The Board further informed Martinez that any petition for review must be received by this court within 60 calendar days of the date the initial decision became final. Martinez did not appeal the initial decision to the Board. Martinez’s petition for review was received by the court on January 27, 2011, 62 days after the Board’s decision became Enal on November 26 ' A petition for review must be received by the court within 60 days of receipt of notice of the Board's final order. 5 U.S.C. § 7703(b)(1). To be timely f'iled, the petition must be received by this court on or before the date that the petition is due. Pinat v. Office of Person,nel Management, 931 F.2d 1544, 1546 (Fed. Cir. 1991) (peti- tion is filed when received by this court; court dismissed petition received nine days late). Because Martinez’s petition was not timely received by this court, it must be dismissed based on controlling precedent of this c0urt. See Oja v. Dep’t of the Army, 405 F.3d 1349, 1360 (Fed. Cir. 20()5) (“Seeing no specific authorization for the equitable tolling of section 7703(b)(1), we find that the congressionally approved statements of Rules 15(a)(1) and 26(b)(2) require the conclusion first reached in Monzo and herein followed. Compliance with the filing deadline for 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction over this case.”). Accordingly, IT ls OR:oERED THAT: (1) OPM’s motion to dismiss is granted 3 MARTINEZ V. OPM (2) Each side shall bear its own costs. FoR THs CoURT ,|]|] 12 2011 /3/Jan H@rba1y Date J an Horbaly ¥.S. 00 clerk me -nc E'=‘5-,, l'\'lQl¢lu emg l'” 9-§§ EALS FOR RCU|T cc: Edward P. Fahey, Jr., Esq. l 1 2 Douglas G. Edelschick, Esq. JANHO s20 cLEm Issued As A l\/[andate: JU\_ l 2 pp pp RBALY