Tutor v. Department of the Army

66 F. App'x 880

• Court: Court of Appeals for the Federal Circuit
• Decided: June 2, 2003
• Docket: No. 03-3201
• Status: Published

Opinion

SCHALL, Circuit Judge.

ORDER

We treat the letter received on April 8, 2003 as a motion for reconsideration of this court’s rejection of Chester D. Tutor’s March 17, 2003 petition for review as untimely.

On January 10, 2003, the Merit Systems Protection Board issued its final order in Tutor’s case. Tutor received the Board’s final order on January 13, 2003. This court received a petition for review from Tutor on March 17, 2003. On April 1, 2003, this court rejected the petition for review as untimely.

In his motion, Tutor states that he deposited his petition for review in the mail on March 6, 2003 and argues that we should accept it as timely because it was mailed before the due date and with sufficient time to reach the court by the due date of March 14, 2003. However, the mail box rule does not apply to appeals or petitions; a petition for review of a Board decision must be received by this court by the due date, not merely mailed before the due date. Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed.Cir.1991) (court must dismiss petition if received after due date). See also 5 U.S.C. 7703(b)(1) (“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”); Fed. R.App. P. 25(a)(2) (“filing is not timely unless the clerk receives the papers within the time fixed for fifing”); Fed. R.App. P. 26(b)(2) (the court may not extend the time to file “a petition to ... review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law”). Thus, Tutor’s petition for review, received 63 days after his receipt of the Board’s final order, is untimely and must be dismissed.

Accordingly,

IT IS ORDERED THAT:

(1) Tutor’s motion is denied and this petition for review is dismissed.

(2) Each side shall bear its own costs.