Hobson v. Defense

• Court: Court of Appeals for the Federal Circuit
• Decided: April 21, 2023
• Docket: 23-1258
• Status: Unpublished

Opinion

Case: 23-1258 Document: 17 Page: 1 Filed: 04/21/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FAYE R. HOBSON, Petitioner

v.

DEPARTMENT OF DEFENSE, Respondent ______________________

2023-1258 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-1221-15-0470-W-1. ______________________

Before DYK, TARANTO, and STOLL, Circuit Judges. PER CURIAM. ORDER Faye R. Hobson has filed a petition for review of the Merit Systems Protection Board’s final October 4, 2022, de- cision. In response to this court’s February 16, 2023, order to show cause, the Department of Defense urges dismissal as untimely. Faye R. Hobson opposes dismissal. Under 5 U.S.C. § 7703(b)(1)(A), a petition to review a final decision by the Board must be filed “within 60 days after the Board issues notice of the final . . . decision,” and this deadline is mandatory and jurisdictional, Fedora v. Case: 23-1258 Document: 17 Page: 2 Filed: 04/21/2023

Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017). See ECF No. 1-2 at 20 (Board decision noting that the peti- tion for review “must be received by th[is] court within 60 calendar days” (emphases in original)). In this case, the deadline for Ms. Hobson to file her petition for review was December 5, 2022, * but her petition was not received by this court until December 7, 2022. Ms. Hobson argues that her petition is timely because she mailed it before the deadline. She cites to 27 C.F.R. § 70.305 for the proposition that her “[t]imely mailing” should be “treated as [a] timely filing.” ECF No. 12 at 2. However, that regulation applies to the Alcohol and To- bacco Tax and Trade Bureau, not to filings with this court. For petitions filed under 5 U.S.C. § 7703(b)(1)(A), we have held (consistent with Federal Rule of Appellate Proce- dure 25(a)(2)(A)(i)) that “filing requires actual receipt by the court, not just timely mailing.” Fedora, 848 F.3d at 1016. Because Ms. Hobson’s petition was filed outside the statutory deadline, we dismiss. Accordingly, IT IS ORDERED THAT: (1) The petition for review is dismissed. (2) Each party shall bear its own costs. FOR THE COURT

April 21, 2023 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court

* Because the 60-day deadline fell on December 3, 2022, which was a Saturday, Ms. Hobson’s petition was due no later than Monday, December 5, 2022. See Fed. R. App. P. 26(a)(1).