Gibson v. Dept. Of the Army

Opinion

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit KARL GIBSON, Petiti0ner, V. DEPARTMENT OF THE ARMY, Resp0ndent. 2011-3153 .. Petiti0n for review of an arbitrator’s decision in FMSC no. 101028-O0325-8 by Ge0ffrey L. Pratte. ON MOTION Bef0re RADER, Chief Judge, DYK and O'MALLEY, Circuit Judges. PER CUR1AM. The Department of the Army moves to waive the re- quirements of Fed. Cir. R. 27(f) and to dismiss KarI Gi.bs0n’s petition for review as untimely Gibs0n re- sponds The Army replies \

GlBSON V. ARMY 2 On October 26, 2010, an arbitrator dismissed Gibson’s grievance. Gibson admits that he received the arbitra- tor’s decision by February 10, 2011. Gibson’s petition for review was received by the court on June 13, 2011, 123 days later. A petition for review of an arbitrator's decision must be filed within 60 days of receipt of notice of the decision 5 U.S.C. §§ '7121(f), 7703(b)(1). The 60 day filing period is "statutory, mandatory, [and] jurisdictional." See M0nzo v. Dept. of Trcmsp., 735 F.2d 1335, 1336 (Fed. Cir. 198-4); see also Oja v. Dept. of the Arm,_'y, 405 F.3d 1349, 1360 (Fed. Cir. 2005) (“[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”). Because this petition was not timely re- ceived by this court, it must be dismissed Bowles v. Ru,ssell, 551 U.S. 205 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement that cannot be waived). Accordingly, IT ls ORDERED TiiAT: (1) The Army’s motions are granted. Gibson’s peti- tion is dismissed (2) Each side shall bear its own costs.

FOR THE COURT N0V 4 /s/ J an Horbaly Date J an Horba1y Clerk cc: Karl Gibson E11en M. Lynch, Esq. s20 Issued As A Mandate: 4 _ _ FE w.s. cows 0'FlI='\PPsALs ron ms FEoEaA»_ rincon NOV 14 2011 .|ANHDRBALY CLElI£