Rodriguez v. Office of Personnel Management

NOTE: 'l‘his order is nonprecedential United States Court of AppeaIs for the Fede1'aICircuit IRMA S. OCHOA, Petiti0n,er, V. OFFICE OF PERSONNEL MANAGEMENT, Resp0ndent. ' 2011-3069 . Petiti0n for review of the Merit Systems Pr0tecti0n B0ard in case n0. DAO84110U543-l-1. ON MOTION Before GAJARsA, MAYER, and PROsT, Circuit Judges. P1-rs CUR1AM. ORDER The Office of Pers0nnel l\/Ianagement (OPM) moves to dismiss luna S. Och0a’s petition for review as untin1ely. On Oct0ber 22, 2010, an administrative judge issued an initial decisi0n, affirming OPM’s denial of Och0a’s OCHOA V. OPM 2 claims, and notifying Ochoa that, absent an appeal to the Board, the decision would become final on November 26, 2010. The Board further informed Ochoa that any peti- tion for review must be received by this court within 60 calendar days of the date the initial decision became final Ochoa did not appeal the initial decision to the Board. Ochoa’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. Pinat v. Office of Personnel Monagement, 931 F.2d 15-44, 1546 (Fed. Cir. 1991) (peti- tion is filed when received by this court; court dismissed petition received nine days late). _ Because Ochoa’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 followed. 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, IT ls ORDERED THAT: (1) OPM’s motion to dismiss is granted. (2) Each side shall bear its own costs. 1 3 oonoA v_ oPM FoR THE COURT 1 2 /s/ Jan Horbaly D ate J an H0rb aly FlLED la count oF APPEALs ma C1erk ms FEoERALc\Rculr cc: Edward P. Fahey, Jr., Esq. 1 Douglas G. Edelschick, Esq. 320 Mcii:i4