Villareal v. United States Postal Service

120 F. App'x 365

• Court: Court of Appeals for the Federal Circuit
• Decided: January 26, 2005
• Docket: No. 05-3031
• Status: Published

Opinion

BRYSON, Circuit Judge.

ORDER

Israel M. Villareal, Jr. requests that the court accept his untimely petition for review and moves for leave to proceed in forma pauperis. The United States Postal Service (USPS) moves to dismiss Villareal’s petition for review as untimely.

On July 27, 2004, the Merit Systems Protection Board issued a final decision in Villareal’s case, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt óf the Board’s decision. Villareal received the Board’s decision on July 29, 2004. Villareal’s petition for review was received by the court on October 6, 2004, 69 days after his receipt of the Board’s decision.

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 Administraiton, 735 F.2d 1335, 1336 (Fed.Cir.1984). Thus, Villareal’s petition for review was due in this court within 60 days of receipt of the Board’s final decision, i.e., September 27, 2004. Because Villareal’s petition for review was received on October 6, 2004, 9 days late, the court must dismiss Villareal’s petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) USPS’ motion to dismiss is granted.

(2) Each side shall bear its own costs.

(3) All pending motions are moot.