Case: 22-2254 Document: 9 Page: 1 Filed: 02/14/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

STUART R. HARROW, Petitioner

v.

DEPARTMENT OF DEFENSE, Respondent ______________________

2022-2254 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-0752-13-3305-I-1. ______________________

Before TARANTO, MAYER, and STOLL, Circuit Judges. PER CURIAM. ORDER In response to this court’s order to show cause, Stuart R. Harrow argues against dismissal of his case. The De- partment of Defense has not responded. On May 11, 2022, the Merit Systems Protection Board issued its final decision affirming the agency’s furlough ac- tion. The decision informed Mr. Harrow that to seek judi- cial review in this court, the court had to receive a petition for review from him “within 60 calendar days of the date of Case: 22-2254 Document: 9 Page: 2 Filed: 02/14/2023

2 HARROW v. DEFENSE

issuance of this decision.” ECF No. 6 at 35 (emphasis omit- ted). On September 8, 2022, outside of that 60-day period, Mr. Harrow moved the Board for an extension of time to appeal. The Acting Clerk of the Board replied by letter dated September 12, 2022, explaining that “the Board can- not extend the deadline for seeking review in another fo- rum, such as a court.” ECF No. 1-2 at 22. Mr. Harrow then filed this petition on September 16, 2022, 128 days after the Board’s final decision. The timely filing of a petition from the Board’s final de- cision is a jurisdictional requirement and “not subject to equitable tolling.” Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017). A petition from a final decision “shall be 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). Here, Mr. Harrow does not dispute that he filed his petition for review outside of this statutory dead- line. Mr. Harrow contends that his failure to timely file his petition for review is excusable, stating that he did not be- come aware of the decision until August 30, 2022, as a re- sult of his “fail[ure] to notify [the Board] of his new email address,” Resp. at 7. While we may be sympathetic to Mr. Harrow’s situation, this court can only consider whether the petition was timely filed and cannot excuse a failure to timely file based on individual circumstances. Cf. Fed. R. App. P. 26(b)(2) (prohibiting the court from extending or reopening the time to petition for review “unless specifi- cally authorized by law”). To the extent that Mr. Harrow contends that the Board had authority to extend the time to file a petition for re- view, we likewise reject that argument. “[A]dministrative agencies are generally limited to the exercise of powers del- egated them by Congress.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1359 (Fed. Cir. 2008). Mr. Case: 22-2254 Document: 9 Page: 3 Filed: 02/14/2023

HARROW v. DEFENSE 3

Harrow has identified no source of law that grants the Board authority to extend the deadline to petition this court for review. Mr. Harrow cites to Federal Rule of Ap- pellate Procedure 4(a)(5), but that only permits district courts to extend the time to appeal, consistent with 28 U.S.C. § 2107(c). Mr. Harrow points to no authority, and we are aware of none, that would authorize the Board to extend the jurisdictional deadline in § 7703(b)(1)(A). Accordingly, IT IS ORDERED THAT: (1) The petition for review is dismissed. (2) Each side shall bear its own costs. FOR THE COURT

February 14, 2023 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court