Mendoza v. Office of Personnel Management , 421 F. App'x 977 ( 2011 )

NOTE: This order is nonprecedential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