Miller v. Office of Personnel Management

184 F. App'x 953

• Court: Court of Appeals for the Federal Circuit
• Decided: May 1, 2006
• Docket: No. 2006-3205
• Status: Published

Opinion

PER CURIAM.

ORDER

The court treats Geneva Miller’s correspondence concerning the timeliness of her petition for review as a motion for reconsideration of the court’s previous rejection of her petition for review as untimely. Miller moves for leave to proceed in forma pauperis.

On December 27, 2005, the Merit Systems Protection Board issued a final decision in Miller v. OPM, No. PH-831E-05-0276-1-1,101 M.S.P.R. 132, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. A copy of the certified mail receipt reflects that Miller received the Board’s decision on December 29, 2005.

* Miller’s petition seeking review of the Board’s decision was received by the court on March 1, 2006 and rejected as untimely.

Our review of a Board decision is governed by 5 U.S.C. § 7703(b)(1), which provides that “[notwithstanding 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 Administration, 735 F.2d 1335, 1336 (Fed.Cir. 1984). Thus, under the time provision of the statute, Miller’s petition for review was due in this court within 60 days of receipt of the Board’s final decision, i.e., by February 27, 2006. Because Miller’s petition for review was received on March 1, 2006, 2 days late, the court must dismiss Miller’s petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) The motion for reconsideration is denied. The petition for review is dismissed as untimely.

(2) Each side shall bear its own costs.

(3) Miller’s motion for leave to proceed in forma pauperis is moot.

Miller stated in her petition for review that she received the decision on December 30, 2005. In her motion for reconsideration she states that she is "not positive” if she received it exactly on that date. Nevertheless, even assuming that she received the decision on December 30, her petition would still be untimely.