Fitzpatrick v. Department of the Treasury

ORDER

PER CURIAM.

The Department of Treasury and Merit Systems Protection Board each respond to the court’s January 24, 2006 order concerning the timeliness of Joseph S. Fitzpatrick’s petition for review. Fitzpatrick has not responded.

Fitzpatrick sought review by the Merit Systems Protection Board of the Administrative Judge’s decision affirming the decision of the Department of the Treasury removing him from his position as a coin assembly machine operator. The Board denied Fitzpatrick’s petition for review and informed Fitzpatrick 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. Fitzgerald v. Dep’t of Treasury, No. AF-0752-05-0184-I-1 (Oct. 14, 2005). The Board served its decision on Fitzgerald via electronic mail on October 14, 2005. Pursuant to the Board’s regulations, Fitzgerald is deemed to have received the decision on the date it was served on him via electronic mail (“Board documents served electronically on registered e-filers are deemed received on the date of electronic submission.” 5 CFR § 1201.14(1)). Thus, Fitzgerald is deemed to have received the Board’s decision on October 14, 2005. The court received Fitzgerald’s petition for review on December 19, 2005, 66 days later.

Our review of a Board decision is governed by 5 U.S.C. § 7703(b)(1), which provides that “[notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.” This filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dep’t of Transportation, 735 F.2d 1335, 1336 (Fed. Cir.1984). Thus, Fitzgerald’s petition for review was due in this court within 60 days of receipt of the Board’s final decision, i.e., by December 13, 2005. Because Fitzgerald’s petition for review was received on December 19, 6 days late, the court must dismiss Fitzgerald’s petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) The petition for review is dismissed as untimely.

(2) Each side shall bear its own costs.