Rodriguez v. Office of Personnel Management , 421 F. App'x 975 ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
JOSE Z. RODRIGUEZ,
Petitioner, -
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
2011-3073 ..
Petition for review of the Merit Systems Pr0tection
Board in case no. DA0841100547-I-1.
ON MOTION
Before GAJARSA, MAYER, and PROST, Circu.it Judges.
PER CURLAM.
ORDER
The Office of Personnel Managernent (OPM) moves to
dismiss Jose Z. Rodriguez’s petition for review as un-
tin1ely. °
RODRIGUEZ V. OPM 2
On October 22, 2010, an administrative judge issued
an initial decision, affirming OPM’s denial of RodrigueZ’s
claims, and notifying Rodriguez that, absent an appeal to
the Board, the decision would become final on November
26, 2010. The Board further informed Rodriguez that any
petition for review must be received by this court within
60 calendar days of the date the initial decision became
final. Rodriguez did not appeal the initial decision to the
Board. Rodriguez’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
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 Rodriguez’s petition was not timely received
by this court, it must be dismissed based on controlling
precedent of this court. See Oja I). 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 ORoERED THAT;
(1) OPM’s motion to dismiss is granted
1
3 RODRIGUEZ v. OPM
(2) Each side shall bear its own costs.
FoR THE CoUR'r
l 2 lsi Jan Horbaly
Date J an Horbaly
Clerk
` u.s.couRi:i)iFEi=)PrALs ron
cc: Edward P. Fahey, Jr., Esq. THE FEDERM' owing
Douglas G. Edelschick, Esq. dm 1 mm
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.lAN l‘lUR
Issued As A Mandate: JUL 1 2 C|_E|}(BALY
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