Constancio Lara, Jr. v. Office of Personnel Management

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

CONSTANCIO LARA, JR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.

2011-3067

Petition for review of the Merit Systems Protection
Board in case no. DA0841100541-I-1.

## ON MOTION

Before GAJARSA, MAYER, AND PROST, Circuit Judges.
PER CURIAM.

## ORDER

The Office of Personnel Management (OPM) moves to
dismiss Constancio Lara, Jr.'s petition for review as
untimely.

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On October 22, 2010, an administrative judge issued
an initial decision, affirming OPM's denial of Lara's
claims, and notifying Lara that, absent an appeal to the
Board, the decision would become final on November 26,
2010. The Board further informed Lara that any petition
for review must be received by this court within 60 calen-
dar days of the date the initial decision became final.
Lara did not appeal the initial decision to the Board.
Lara'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) (peti-
tion is filed when received by this court; court dismissed
petition received nine days late).

Because Lara'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.

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(2) Each side shall bear its own costs.

FOR THE COURT

JUL 12 2011

/s/ Jan Horbaly

Date

Jan Horbaly

FILED U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Clerk

cc: Edward P. Fahey, Jr., Esq.
Douglas G. Edelschick, Esq.
$20
JAN HORBALY
CLERK

JUL 12 2011

Issued As A Mandate:

JUL 12 2011