Mendoza v. Office of Personnel Management

NOTE: This order is nonprecedential United States Court of Appeals for the FederaI Ci1'cuit JOSE M. SOTO, Petition,er, V. OFFICE OF PERSONNEL MANAGEMENT, Respon,dent. 2011-3071 .. Petiti0n for review of the Merit Syste1ns Pr0tection Board in case n0. DA0831100545-I-1. ON MOTION Before GAJARsA, MAYER, and PRosT, Circuit Judges. PER CURIAM. ORDER The Ofiice of Personne1 Management (OPM) moves to dismiss Jose M. Soto’s petition for review as untimely On October 22, 2010, an administrative judge issued an initial decision, affirming OPM’s denial of Sot0’s SOTO V. OPM 2 claims, and notifying Soto that, absent an appeal to the Board, the decision would become final on November 26, 2010. The Board further informed Soto that any petition for review must be received by this court within 60 calen- dar days of the date the initial decision became final Soto did not appeal the initial decision to the Board. Soto’s petition for review was received by the court on January 27, 2011, 62 days after the Board’s_decision became final 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 filed, the petition must be received by this court on or before the date that the petition is due. Pinot u. Office of Personnel Management, 931 F.2d 154-4, 1546 (Fed. Cir. 1991) (peti- tion is filed when received by this c0urt; court dismissed petition received nine days late). _ Because Soto’s petition was not timely received by this court, it must be dismissed based on controlling precedent of this court. See Oja v. Dep’t of the Army, 405 F.3d 1349, 1360 (Fed. Cir. 2005) ("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 fo1lowed. Compliance with the filing deadline for 5 U.S.C. § 7'703(b)(1) is a prerequisite to our exercise of jurisdiction over this case."). Accordingly, I'r ls 0R1)ERED THAT: (1) OPM’s motion to dismiss is granted (2) Each side shall bear its own costs. 3 soTo v_ opm FoR THE CoURT 1 2 lsi Jan Horbaly cc: Edward P. Fahey, Jr., Esq. S FlLED Date J an Horbaly 5-8. COURT §JF APPEALS FOR C1e1_k THE_FED!:RAl. ClRCUl`|` JUL 12Z[l11 Douglas G. Edelschick, Esq. mn HoRBALY 20 aim Issued As A Mandate: 1 2 mm