Luzonica M. Bautista v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUZONICA M. BAUTISTA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1500
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-21-0221-I-1.
______________________
ON MOTION
______________________
Before L OURIE, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Luzonica M. Bautista moves for leave to proceed in
forma pauperis. The Merit Systems Protection Board
moves to dismiss this matter as untimely. Ms. Bautista
has not responded to the Board’s motion.
Ms. Bautista appealed to the Board from the agency’s
decision denying her application for an annuity. On
Case: 22-1500 Document: 11 Page: 1 Filed: 05/26/2022

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BAUTISTA v. MSPB 2
November 10, 2021, an administrative judge issued a deci-
sion dismissing Ms. Bautista’s appeal as untimely and, al-
ternatively, affirming the agency’s decision. That decision
became the final decision of the Board on December 15,
2021, by operation of the fact that Ms. Bautista did not
timely seek further review at the Board. This court re-
ceived Ms. Bautista’s petition for this court’s review 69
days later, on February 22, 2022.
Section 7703(b)(1)(A) of title 5 of the U.S. Code states
that a petition for review from the Board “shall be filed
within 60 days after the Board issues notice of the final or-
der or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A). This
court has held that section 7703(b)(1)(A)’s statutory dead-
line is jurisdictional and not subject to equitable tolling.
See Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016
(Fed. Cir. 2017). Thus, we may only consider whether the
petition for review was timely filed. Ms. Bautista’s petition
here was received outside of the 60-day filing deadline, and
we therefore must dismiss.
Accordingly,
I T I S O RDERED T HAT :
(1) The Board’s motion to dismiss is granted. The pe-
tition for review is dismissed.
(2) Each side shall bear its own costs.
(3) Ms. Bautista’s motion is denied as moot.
May 26, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: May 26, 2022
Case: 22-1500 Document: 11 Page: 2 Filed: 05/26/2022

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