Charlotte A. Vargas, Petitioner, v. Department of the Air Force, Respondent, 864 F.2d 149 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 864 F.2d 149 (Fed. Cir. 1988) Nov. 16, 1988

Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and MAYER, Circuit Judge.


Charlotte A. Vargas (Petitioner) appeals the final order of the Merit Systems Protection Board (board) denying petitioner's request for review of the board's initial decision, No. DE07528710154. We dismiss the appeal.


The board's initial decision was rendered on April 2, 1987. Petitioner's petition for review of that decision was denied on August 13, 1987. Petitioner submitted a timely petition for review by this court, but later voluntarily moved to dismiss that petition. That request was granted by this court on January 13, 1988. On February 8, 1988 petitioner moved, pursuant to 5 C.F.R. Secs. 1201.12 and 1201.114(i) for waiver of the regulatory time limits and acceptance of a late-filed petition for review. The board treated petitioner's February 8, 1988 submission as a request for reconsideration or to reopen the case, and denied petitioner's request.

Petitioner's argument that the board erred in not treating the February 8, 1988 submission as a late-filed petition for review is unpersuasive. 5 C.F.R. section 1201.113(c) does not, as petitioner suggests, indicate that multiple petitions for review by the same party in the same case are acceptable. The board did not err in considering petitioner's submission as a request to reopen.

Under 5 C.F.R. Sec. 1201.113(b), the board's decision became final when it denied petitioner's petition for review on August 13, 1987. Petitioner then had 30 days to petition this court for review of that decision, which she did. 5 U.S.C. § 7703(b) (1). The time limit imposed by this statute is jurisdictional. Monzo v. Department of Transportation, 735 F.2d 1335, 1336 (Fed. Cir. 1984). Petitioner voluntarily withdrew her petition for review. By the time she submitted her present petition for review, the 30 day appeal limit had already run. The board's denial of petitioner's request to reconsider its earlier decision did not alter the finality of the earlier decision, and thus does not alter the original time period for appeal to this court. Thus, this appeal must be dismissed as untimely.