Penn v. Department of Defense

Federal Circuit

Penn v. Department of Defense

564 F. App'x 1027

CourtCourt of Appeals for the Federal Circuit

DecidedMay 6, 2014

Docket2014-3023

StatusUnpublished

This text of 564 F. App'x 1027 (Penn v. Department of Defense) 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.

Bluebook

Penn v. Department of Defense, 564 F. App'x 1027 (Fed. Cir. 2014).

Pincite

Opinion

ORDER

PER CURIAM.

The parties have responded to this court’s order directing them to show cause why this petition should not be dismissed as untimely.

On July 24, 2013, the Merit Systems Protection Board issued a final order in John Edward Penn, Jr.’s case. The court received his notice of appeal on September 24, 2013, which was 62 days after the Board issued its decision.

*1028 Our review of a Board decision or order is governed by 5 U.S.C. § 7703(b)(1), which provides in relevant part that “[n]ot-withstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A). Penn does not contest the timeliness of his petition but instead argues that equitable tolling applies. However, 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, 1545 (Fed.Cir.1991); see also Fed. R.App. P. 26(b)(2).

Because Penn’s petition concerning the Board’s final order was filed after the statutory deadline for filing a petition, we must dismiss the appeal.

Accordingly,

It Is Ordered That:

(1) The petition is dismissed.

(2) Each side shall bear its own costs.

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ORDER

PER CURIAM.

The parties have responded to this court’s order directing them to show cause why this petition should not be dismissed as untimely.

On July 24, 2013, the Merit Systems Protection Board issued a final order in John Edward Penn, Jr.’s case. The court received his notice of appeal on September 24, 2013, which was 62 days after the Board issued its decision.

*1028 Our review of a Board decision or order is governed by 5 U.S.C. § 7703(b)(1), which provides in relevant part that “[n]ot-withstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A). Penn does not contest the timeliness of his petition but instead argues that equitable tolling applies. However, 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, 1545 (Fed.Cir.1991); see also Fed. R.App. P. 26(b)(2).

Because Penn’s petition concerning the Board’s final order was filed after the statutory deadline for filing a petition, we must dismiss the appeal.

Accordingly,

It Is Ordered That:

(1) The petition is dismissed.

(2) Each side shall bear its own costs.

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Bluebook (online)

564 F. App'x 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-v-department-of-defense-cafc-2014.

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