Mary A. Freeman v. Office of Personnel Management

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY A. FREEMAN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-2000
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-17-0566-I-1.
______________________
Before REYNA, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s August 2, 2023, show cause
order, the Office of Personnel Management (“OPM”) urges
dismissal of the appeal as untimely. Mary A. Freeman
urges that the court not dismiss and states that she
“need[s] legal representation on this.” ECF No. 14 at 1.
In its final decision issued April 3, 2023, the Merit Sys-
tems Protection Board affirmed OPM’s decision that Ms.
Freeman was ineligible for a deferred retirement annuity.
Case: 23-2000 Document: 15 Page: 1 Filed: 10/30/2023

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FREEMAN v. OPM 2
Ms. Freeman’s petition for review was stamped as received
by this court 63 days later, on June 5, 2023.
Under 5 U.S.C. § 7703(b)(1)(A), “a petition to review a
final order or final decision of the Board . . . shall be filed
within 60 days after the Board issues notice of the final or-
der or decision of the Board.” This court’s precedent makes
clear that “filing requires actual receipt by the court, not
just timely mailing,” and that this timeliness requirement
is jurisdictional, which “precludes equitable exceptions.”
Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 (Fed.
Cir. 2017); see Fed. R. App. P. 25(a)(2)(A).
Ms. Freeman’s response includes a petition for review
form, which she contends “was completed and received on
June 2 nd, 2023.” ECF No. 14 at 1. The attached form, how-
ever, bears no indication that it was received on any par-
ticular date, let alone June 2, 2023. The record instead
reflects that Ms. Freeman’s petition was accepted for mail-
ing by the United States Postal Service mid-afternoon on
June 2, 2023, in Georgia, for delivery the next day (a Sat-
urday), ECF No. 1-2 at 16, and that the court received her
petition only on June 5, 2023, ECF No. 1-2 at 1 (stamped
received “JUN 05 2023”). Since Ms. Freeman’s petition
was not filed within the 60-day statutory deadline, we lack
jurisdiction.* Because we clearly lack jurisdiction under
the circumstances, we conclude that appointment of coun-
sel here is not appropriate.
* Ms. Freeman’s filings suggest that she raised a dis-
crimination claim before the Board, but as OPM correctly
noted, nothing in the record suggests that Ms. Freeman al-
leged at the Board that OPM’s underlying decision was
based on discrimination, and therefore Ms. Freeman has
not shown this is a case of discrimination under 5 U.S.C.
§ 7702 that might be subject to transfer to district court.
Case: 23-2000 Document: 15 Page: 2 Filed: 10/30/2023

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FREEMAN v. OPM 3
Accordingly,
I T I S O RDERED T HAT :
(1) The petition is dismissed for lack of jurisdiction.
(2) Any pending motions are denied.
(3) Each side shall bear its own costs.
October 30, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-2000 Document: 15 Page: 3 Filed: 10/30/2023

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