Mashack v. Merit Systems Protection Board

ON MOTION

CLEVENGER, Circuit Judge.

ORDER

The court treats Carl Mashack’s letter concerning the timeliness of his petition for review as a motion for reconsideration of the rejection of his petition for review.

On July 27, 2004, this court received Mashack’s petition for review of the Merit Systems Protection Board’s May 24, 2004 final order. Mashack’s representative received the Board’s final order on May 27, 2004. Mashack’s petition for review was due within 60 days of receipt of the Board’s final order, or July 26, 2004. Thus, Mashack’s petition for review was one day late.

Mashack argues- that if Fed. R.App. P. 26(c) is applied, his petition for review was timely filed. Fed. R.App. P. 26(c) states that “[wjhen a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service.” That rule permits adding three days to a prescribed period when a time limit is determined by the date of “service” of another document, that is, the date of mailing of another document. Here, the timeliness of a petition for review is determined by the date of “receipt” of the Board’s final order, see 5 U.S.C. § 7703(b)(1), and thus Fed. R.App. P. 26(c) does not apply.

Accordingly,

IT IS ORDERED THAT:

(1) Mashack’s motion is denied and his petition for review is dismissed as untimely.

(2) Each side shall bear its own costs.