Williams v. Department of Housing & Urban Development ( 2004 )

ON MOTION

PAULINE NEWMAN, Circuit Judge.

ORDER

Jerry W. Williams requests that the court accept his untimely petition for review and moves for leave to proceed in forma pauperis.

On June 7, 2004 the Administrative Judge (AJ) issued an initial decision informing Williams that the AJ’s decision would become a final Merit Systems Protection Board decision on July 12, 2004. Williams v. Department of Housing and Urban Devt., No. DA-0752-01-0446-P-1 (M.S.P.B. June 7, 2004). Pursuant to 5 U.S.C. § 7703(b)(1), a petition for review must be received by the court within 60 days of the date that a petitioner receives notice of a final Board decision. Williams does not assert that he received the AJ’s decision after July 12, 2004. Williams’ petition for review was received by the court on September 15, 2004, more than 60 days after he received notice of a final Board decision.

Williams requests that the court grant him an extension of time or accept his untimely petition for review pursuant to the principles of equitable tolling set forth in Irwin v. DVA, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). However, the 60-day period for filing a petition for review set forth in 5 U.S.C. § 7703(b)(1) is “statutory, mandatory, [and] jurisdictional” and cannot be waived. Monzo v. Department of Transp., Federal Aviation Admin., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Fed. R.App. P. 26(b) (an appellate court may not extend the time to file a notice of appeal or petition for review). Because Williams’ petition for review was received on September 15, 2004, 5 days late, this court must dismiss Williams’ petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) Williams’ request that we accept his untimely petition for review is denied.

(2) Williams’ petition for review is dismissed.

(3) Each side shall bear its own costs.

(4) All pending motions are moot.