Opinion
No. 2011-3072.
July 12, 2011.
Petition for review of the Merit Systems Protection Board in case no. DA0831100546-I-1.
Before GAJARSA, MAYER, and PROST, Circuit Judges.
ON MOTION
ORDER
The Office of Personnel Management (OPM) moves to dismiss Marta S. Martinez's petition for review as untimely.
On October 22, 2010, an administrative judge issued an initial decision, affirming OPM's denial of Martinez's claims, and notifying Martinez that, absent an appeal to the Board, the decision would become final on November 26, 2010. The Board further informed Martinez that any petition for review must be received by this court within 60 calendar days of the date the initial decision became final. Martinez did not appeal the initial decision to the Board. Martinez'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) (petition is filed when received by this court; court dismissed petition received nine days late).
Because Martinez'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. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction over this case.").
Accordingly.
IT IS ORDERED THAT:
(1) OPM's motion to dismiss is granted.
(2) Each side shall bear its own costs.