Schwartz v. Department of Commerce

112 F. App'x 32

Opinion

CLEVENGER, Circuit Judge.

ORDER

Matthew E. Schwartz responds to this court’s order directing him to show cause why his petition for review should not be dismissed as untimely filed. The Department of Commerce responds and moves to dismiss the petition for review.

Schwartz’s attorney received the Board’s final order on March 18, 2004. The court received Schwartz’s petition for review on June 15, 2004, 89 days later. Schwartz states that his attorney had informed Schwartz that a petition for review had been timely mailed. However, this court did not receive a petition for review from the attorney, only the one filed by Schwartz himself.

A petition for review must be received by the court within 60 days of receipt of the Board’s final decision or order. 5 U.S.C. § 7703(b)(1). The time for petitioning for review is initiated by the receipt of the Board’s final decision or order by the petitioner or his representative, whichever is earlier. Gragg v. United States, 717 F.2d 1343 (Fed.Cir.1983). To be timely filed, the petition must be received by this court on or before the date that the petition is due. Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed Cir.1991) (petition is filed when received by this court; court dismissed petition received nine days late). Because Schwartz’s petition for review in this court was untimely filed, we must dismiss his petition for review. See Monzo v. Dep’t of Transp. Fed. Aviation Admin., 735 F.2d 1335, 1336 (Fed.Cir.1984) (the period for petitioning for review is statutory, mandatory, and jurisdictional); Pinat, 931 F.2d at 1546 (deadline for filing petition for review may not be waived).

Accordingly,

IT IS ORDERED THAT:

(1) Commerce’s motion to dismiss is granted.

(2) Each side shall bear its own costs.