NESBARY v. TREASURY , No. 14-3046 (Fed. Cir. 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 12, 2014.
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Case: 14-3046 Document: 14 Page: 1 Filed: 03/27/2014 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ FRANCINE NESBARY, Petitioner, v. DEPARTMENT OF THE TREASURY, Respondent. ______________________ 2014-3046 ______________________ Petition for review of the Merit Systems Protection Board in No. CH-0752-13-0588-I-1. ______________________ ON MOTION ______________________ Before PROST, O MALLEY, and TARANTO, Circuit Judges. PER CURIAM. ORDER 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 Case: 14-3046 Document: 14 2 Page: 2 Filed: 03/27/2014 NESBARY v. TREASURY 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. FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court s26 ISSUED AS A MANDATE: March 27, 2014
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