Mendoza v. Office of Personnel Management

NOTE: This order is nonprecedentia1. United States Court of AppeaIs for the Federal Circuit MARIO A. MENDOZA, Petitioner, V. OFFICE OF PERSONNEL MANAGEMENT, Resp0ndent. 2011-3U68 . Petiti0n for review of the Me1'it Systems Pr0tection B0ard in case n0. DA083110542-I-1. ON MOTION Before GAJARsA, MAYER, and PRosT, Circmlt Ju,dges. PER CUR1AM. ORDER The Ofiice of Personne1 Manageme11t (OPM) moves to dismiss Ma°rio A. Mendoza’s petition for review as un- tirr1e1y. MENDOZA V. OPM _ 2 On October 22, 2010, an administrative judge issued an initial decision, affirming OPM’s denial of Mendoza’s claims, and notifying lVlendoza that, absent an appeal to the Board, the decision would become final on November 26, 2010 Tl1e B0ard further informed l\/Iendoza that any petition for review must be received by this court within 60 calendar days of the date the initial decision became final. Mendoza did not appeal the initial decision to the Board. l\/lendoza’s petition for review was received by the court on January 27, 2011, 62 days after the Board’s decision became final on Nove1nber 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 Person,nel Management, 931 F.2d 1544, 1546 (Fed. Cir. l991) (peti- tion is filed when received by this court; court dismissed petition received nine days late). Because Mendoza’s petition was not timely received by this court, it must be dismissed based on controlling precedent of this court. See Oja u. 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. § 7703(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 3 MENDOZA v. 0PM (2) Each side shall bear its own costs. FOR THE COURT ,M 12 ml 131 Jan H0rba1y F Date J an Horbaly £I.S. COURT dl?§l?PEAI.S FOR clerk me FEoERAL clRcurT cc: Edward P. Fahey, Jr., Esq. JUl. l 2 2011 Douglas G. Edelschick, Esq. .lANHDRBALY s20 g|_EH Issued As A Mandate: Jl.ll. 1 2