Jones v. Department of Justice

MAYER, Circuit Judge.

ORDER

John A. Jones requests that the court accept his untimely petition for review.

On November 23, 2004, the Merit Systems Protection Board issued a final decision in Jones’ case, specifying that its decision was final and that any petition for review must be filed with this court within 60 days of receipt of the Board’s decision. Jones v. Department of Justice, 98 M.S.P.R. 86 (2004). The Board mailed a copy of the final decision to Jones’ counsel by certified mail. The certified mail receipt shows that the November 23 decision was received at counsel’s address on November 29, 2004. Jones’ petition for review was received by the court on February 9, 2005, 72 days after his counsel’s receipt of the Board’s decision.

Jones submits a statement indicating that he received the Board’s decision on December 13, 2004 and delivered it to his counsel the following day. However, the Board’s records reflect that a copy of the Board’s decision was delivered to the office of Jones’ counsel on November 29, 2004. Jones voluntarily chose his counsel in this case, and the time for filing a petition for review began on the date that the office of Jones’ counsel received the final Board decision. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (where action was required to be filed within 30 days of receipt of notice, time to file began on date of receipt by attorney’s office and not date individual party received notice).

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. Federal Rule of Appellate Procedure 26(b)(2) states that the court “may not extend the time” to file a petition for review of an order of an administrative agency. Because Jones’ petition for review was received on February 9, 2005, 12 days late, the court must dismiss Jones’ petition as untimely.

Accordingly,

IT IS ORDERED THAT:

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

(2) Jones’ petition for review is dismissed.

(3) Each side shall bear its own costs.