Charles E. Allen v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES E. ALLEN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1649
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-08-0343-I-1.
______________________
Before P ROST , Chief Judge, MOORE and REYNA, Circuit
Judges.
P ER CURIAM .
ORDER
On September 26, 2018, we issued to the parties an
order to show cause why Charles E. Allen’s petition for
review should not be dismissed as untimely. Specifically,
we noted that Allen’s petition for review was filed 72 days
from the date of the letter that Allen seeks this court to
review. Under 5 U.S.C. § 7703(b)(1)(A), Allen’s petition
should have been filed 60 days from the date of the letter.

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ALLEN v. MSPB 2
On October 19, 2018, the Board filed its response, ar-
guing that the petition for review is untimely under
§ 7703(b)(1)(A). On October 25, 2018, Allen filed a motion
for continuance to show cause, explaining that he secured
legal counsel and needed additional time for counsel to
review the case and prepare a response. The court grant-
ed Allen’s request.
On November 30, 2018, Allen, now represented by
counsel, filed a response making two arguments. First,
Allen maintains that the court’s order to show cause is
unclear as to the basis relied on by this court for its
timeliness concerns. Second, Allen urges that
“[f]undamental fairness requires the court to look beyond
the technical application of statutory rules regarding
‘time’ and grant [his] request for judicial review.” Pet.
Response at 3. Both arguments are without merit.
In the order to show cause, we identified the specific
factual and legal basis giving rise to the concern of
whether Allen’s petition is timely filed. Allen does not
challenge that basis or offer an alternative by which this
court should determine if the filing date of the petition
satisfies § 7703(b)(1)(A). Allen’s principal argument is
that it would be unfair to rely on “a mere technicality to
deny [his] request for review.” Pet. Response at 3. But
Allen fails to provide any legal basis that allows this court
to forgo the requirements of § 7703(b)(1)(A). See Oja v.
Dep’t of the Army, 405 F.3d 1349, 1358–60 (Fed. Cir. 2005)
(holding compliance with the filing deadline of
§ 7703(b)(1) is not subject to equitable tolling and is a
prerequisite to our exercise of jurisdiction); Fedora v.
Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017)
(citing Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336
(Fed. Cir. 1984)).
Accordingly,
I T I S O RDERED T HAT :

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ALLEN v. MSPB 3
(1) The petition for review is dismissed.
(2) Each side shall bear its own costs.
F OR THE COURT
December 11, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court

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