Henderson v. Office of Personnel Management

120 F. App'x 364

Opinion

BRYSON, Circuit Judge.

ORDER

Manuela M. Henderson requests that the court accept her untimely petition for review and moves for leave to proceed in forma pauperis.

On September 23, 2004, the Merit Systems Protection Board issued final decisions in Henderson v. Office of Personnel Management, No. SF-0843-99-0375-C-2 and Henderson v. Office of Personnel Management, Nos. SF-0843-99-0375-C-3, SF-0843-99-0375-C-4, specifying that its decisions were final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. Henderson states that she received the Board’s decisions on October 7, 2004.

* Henderson’s petition for review seeking review of both Board decisions was received by the court on December 7, 2004, 61 days after her receipt of the Board’s decision.

Our review of a Board decision is governed by 5 U.S.C. § 7703(b)(1), which provides that “[njotwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.” This filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transportation, Federal Aviation Administraiton, 735 F.2d 1335, 1336 (Fed.Cir.1984). Thus, under the time provision of the statute, Henderson’s petition for review was due in this court within 60 days of receipt of the Board’s final decision, i.e., by December 6, 2004. Because Henderson’s petition for review was received on December 7, 2004,1 day late, the court must dismiss Henderson’s petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) Henderson’s request that we accept her untimely petition for review is denied.

(2) Henderson’s petition for review is dismissed.

(3) Each side shall bear its own costs.

(4) All pending motions are moot.

We note that the Board’s records reflect that the certified mail receipt accompanying its decision in Henderson v. Office of Personnel Management, No. SF-0843-99-0375-C-2 was signed on September 27, 2004. Nevertheless, even accepting Henderson's contention that she did not receive the Board’s decisions until October 7, 2004, her petition for review is still untimely and must be dismissed.