Nesbary v. Department of the Treasury

Federal Circuit

Nesbary v. Department of the Treasury

559 F. App'x 1031

CourtCourt of Appeals for the Federal Circuit

DecidedMarch 27, 2014

Docket2014-3046

StatusUnpublished

This text of 559 F. App'x 1031 (Nesbary v. Department of the Treasury) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nesbary v. Department of the Treasury, 559 F. App'x 1031 (Fed. Cir. 2014).

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Opinion

ON MOTION

ORDER

PER CURIAM.

The Department of the Treasury moves to dismiss this petition for review as untimely. Francine Nesbary submits a response opposing the motion to dismiss.

A September 11, 2013 initial Merit Systems Protection Board decision dismissed Nesbary’s appeal for lack of jurisdiction. Nesbary did not request full Board review and the decision became final on October 16, 2013. The court received her petition for review on December 17, 2013, which was 62 days after the Board decision became final. Because the due date for the petition, December 15, fell on a Sunday, the petition would have been timely if received on or before December 16.

To be timely, the court must receive the petition for review no later than 60 calendar days after the date the initial decision becomes final. See 5 U.S.C. § 7703(b)(1)(A); 5 C.F.R. § 1201.113. This filing period is “statutory, mandatory, [and] jurisdictional” and the court does not have the authority to waive the requirements. Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed.Cir.1991); see also Fed. R.App. P. 26(b)(2).

Because Nesbary’s petition for review as to the underlying decision was filed past the statutory deadline, we must dismiss the petition.

Accordingly, It Is Ordered That:

(1) The motion to dismiss is granted. The petition is dismissed.

(2) All other pending motions are denied as moot.

(3) Each side shall bear its own costs.

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ON MOTION

ORDER

PER CURIAM.

The Department of the Treasury moves to dismiss this petition for review as untimely. Francine Nesbary submits a response opposing the motion to dismiss.

A September 11, 2013 initial Merit Systems Protection Board decision dismissed Nesbary’s appeal for lack of jurisdiction. Nesbary did not request full Board review and the decision became final on October 16, 2013. The court received her petition for review on December 17, 2013, which was 62 days after the Board decision became final. Because the due date for the petition, December 15, fell on a Sunday, the petition would have been timely if received on or before December 16.

To be timely, the court must receive the petition for review no later than 60 calendar days after the date the initial decision becomes final. See 5 U.S.C. § 7703(b)(1)(A); 5 C.F.R. § 1201.113. This filing period is “statutory, mandatory, [and] jurisdictional” and the court does not have the authority to waive the requirements. Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed.Cir.1991); see also Fed. R.App. P. 26(b)(2).

Because Nesbary’s petition for review as to the underlying decision was filed past the statutory deadline, we must dismiss the petition.

Accordingly, It Is Ordered That:

(1) The motion to dismiss is granted. The petition is dismissed.

(2) All other pending motions are denied as moot.

(3) Each side shall bear its own costs.

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559 F. App'x 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesbary-v-department-of-the-treasury-cafc-2014.

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