Jarmin v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARVIN L. JARMIN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1088
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-16-0161-I-1.
______________________
Decided: March 9, 2017
______________________
MARVIN L. JARMIN, Mount Vernon, WA, pro se.
STEVEN C. HOUGH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD.
______________________
Before REYNA, LINN, and CHEN, Circuit Judges.
2 JARMIN v. OPM
PER CURIAM.
Mr. Marvin L. Jarmin petitions for review of the Mer-
it Systems Protection Board’s (“Board”) decision affirming
the Office of Personnel Management’s (“OPM”) decision to
deny his request for service credit under the Civil Service
Retirement Act (“CSRA”) for his military service. Jarmin
v. Office of Pers. Mgmt., No. SF-0831-16-0161-I-1, 2016
WL 4425122 (M.S.P.B. Aug. 19, 2016). Because
Mr. Jarmin failed to file a timely petition for review to
this court, we must dismiss for lack of jurisdiction.
DISCUSSION
I
Mr. Jarmin served on active duty in the United States
Army from January 5, 1954, through December 8, 1955.
From December 8, 1955, until his honorable discharge on
December 31, 1961, he served in the United States Army
Reserves. From February 1, 1965, until his retirement on
September 30, 1986, Mr. Jarmin worked as a civilian
employee of the United States Department of Agriculture.
Mr. Jarmin’s Civil Service Retirement System (“CSRS”)
annuity includes service credit for his active duty service
with the Army, but not for his reserve duty service with
the Reserves.
On February 20, 2015, Mr. Jarmin contacted OPM to
request service credit for his reserve duty service. On
July 15, 2015, OPM denied his request. Mr. Jarmin
sought reconsideration on August 31, 2015, which OPM
denied on November 12, 2015.
In December 2015, Mr. Jarmin appealed OPM’s deci-
sion to the MSPB. On February 18, 2016, the MSPB
issued its initial decision affirming OPM’s decision. On
August 19, 2016, the MSPB issued its Final Order affirm-
ing the administrative law judge’s decision and denying
Mr. Jarmin’s petition for review.
JARMIN v. OPM 3
On October 20, 2016, Mr. Jarmin filed informal docu-
ments with this Court which we construed as a petition
for review.
II
Before addressing the merits, an appeals court must
ensure that it has jurisdiction over the matters appealed.
See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
94–95 (1998). This court’s review of final decisions of the
Board is limited to those petitions “filed within 60 days
after the Board issues notice of the final order or decision
of the Board.” 5 U.S.C. § 7703(b)(1)(A). 1 If that statutory
deadline is not met, we cannot exercise jurisdiction in the
case. See Oja v. Dep't of the Army, 405 F.3d 1349, 1360
(Fed. Cir. 2005) (“Compliance with the filing deadline of 5
U.S.C. § 7703(b)(1) is a prerequisite to our exercise of
jurisdiction over this case.”); see also Monzo v. Dep't of
Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984) (holding
that the filing deadline under 5 U.S.C. § 7703(b)(1) is
“statutory, mandatory [and] jurisdictional”); Bowles v.
Russell, 551 U.S. 209, 210 (2007) (holding that statutory
time limits for taking an appeal are jurisdictional); Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010).
With its August 19, 2016 Final Order pertaining to
Mr. Jarmin, the Board included a “Notice to the Appellant
Regarding Your Further Review Rights,” stating specifi-
cally that the Federal Circuit “must receive your request
for review no later than 60 calendar days after the date of
1 Before Congress amended this statute in 2012, the
deadline was 60 days after the petitioner received notice of
the MSPB’s decision. See 5 U.S.C. § 7703(b)(1) (2011).
However, even under the old standard we would lack
jurisdiction, since Petitioner asserts on the face of his
petition that he received the MSPB’s order on August 19,
2016, the same date it was issued.
4 JARMIN v. OPM
this order” and noting that Mr. Jarmin should be “very
careful to file on time.” App’x 7.
Under § 7703(b)(1), Mr. Jarmin’s petition was due six-
ty days after the MSPB issued its final order on August
19, 2016, resulting in a deadline of October 18, 2016.
Here, the first papers filed by Mr. Jarmin with the Court
were received on October 20, 2016, two days after that
deadline. Because Mr. Jarmin’s petition was filed after
the 60–day statutory period for appeal, this court cannot
exercise jurisdiction to address the merits of his case.
For the reasons stated above, we find that we are
without jurisdiction to consider this appeal and must
therefore dismiss this case.
DISMISSED
COSTS
Each party shall bear its own costs.