Gingery v. Department of the Treasury

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3238 STEPHEN W. G|NGERY, _Petitioner, v. DEPART!VlENT OF THE TREASURY, Respondent. Petition for review of the Merit Systems Protection Board in CH3443080256-B-1. Before RADER, CLEVENGER, and DYK, Circuit Judges. PER CUR|AiVl. 0 R D E R The court treats Stephen W. Gingery’s correspondence concerning the timeliness of his petition for review as a motion for reconsideration of the court’s previous rejection of his petition for review as untimely. On May 14, 2009, the Merit Systems Protection Board issued a final decision in Ginqery v. Department of the '|:reasury, No. CH-3443-08-0256-B-‘l, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The court received Gingery's petition for review on Ju!y 14, 2009. The Board’s records reflect that Gingery was registered as an e-ti|er. Pursuant to the Board’s regulations an e-filer is deemed to receive a decision on the date it is sen/ed via electronic mail. _$_e_e_ 5 CFR §‘l201.14(m)(2) ("lv1SPB documents sen/ed electronically on registered e-filers are deemed received on the date of electronic submission"). Thus, Gingery is deemed to have received the Board’s decision on ll/lay 14, 2009. Gingery’s petition for review seeking review of the Board’s decision was received by the court 61 days iater, on Ju|y ‘l4, 2009.' A petition for review of a Board decision must be filed within 60 days of receipt of the decision. § 5 U.S.C. § 7703(b)('l). The 60-day filing period is "statutory, mandatory, [and] jurisdictional." lVlonzo v. Dept. of Transi:L , 735 F.2d 1335, 1336 (Fed. Cir. 1984); see also O_ia v. Department of the Army, 405 F.3d 1349, 1360 (Fed. Cir. 2005) ("[c]omp|iance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction"). Because Gingeiy’s petition for review was received on Ju|y 'l4, one day late, this court must dismiss Gingeiy’s petition as untimely Accordingly, lT lS ORDERED Tl-lAT: (‘l) The motion is denied The petition for review is dismissed as untimely. (2) Each side shall bear its own costs. (3) All pending motions are moot. FOR THE COURT N0V 0 9 2009 /s/Jan Horbaly Date Jan Horbaly gm C|erk U.8._00UE'F FAPP 13 993 cc: Stephen W. Gingery wis D€m“'G'E%u'T Devin A. Wo|ak, Esq. NOv 09 2009 517 1Aiiii0RBALY cLERK ' Gingery argues that the Board gave him an incorrect zip cocie, 20439, for the filing of a petition for review in this court. Gingery states that according to the United States Postai Service (USPS) the court’s zip code is 20005-7700. Gingery submits a printout from the zip code finder on the USPS website; however, in his query, Gingery appears to have transposed two digits and typed "24039" rather than "20439." in any event, the court’s correct zip code is 20439, which is the zip code that Gingery concedes the Board provided to him. 2009-3238 2