Opinion
No. 2011-3010.
December 8, 2010.
Petition for review of an arbitrator's decision in case no. NB2564 by Norman Brand.
Before LOURIE, MAYER, and DYK, Circuit Judges.
ON MOTION
ORDER
George Alcantar moves for leave to proceed in forma pauperis and submits correspondence requesting that the court accept his untimely petition for review. The court considers whether the petition should be dismissed.
On June 28, 2010, the arbitrator issued a final decision in Alcantar v. Department of Veterans Affairs., No. NB2564. In his petition for review, Alcantar states that he received the arbitrator's decision on June 30, 2010. The court received Alcantar's petition for review 63 days later, on September 1, 2010.
A petition for review of an arbitrator's decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. §§ 7121(f), 7703(b)(1). The 60-day filing period is "statutory, mandatory, [and] jurisdictional." Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed. Cir. 2005) ("[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction").
Alcantar states that he mailed his petition to the court on August 23, 2010 and that he was informed by postal employees that "it would be received by the Court on Thursday, August 26, 2010." However, documents other than briefs and appendices are not timely filed unless received by the clerk "within the time fixed for filing." See Fed.R.App.P. 26(a)(2)(A). Thus, Alcantar's petition was not filed until it was received by the clerk on September 1, 2010. Because Alcantar's petition for review was received by this court three days late, this court must dismiss Alcantar's petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) Alcanter's motion for reconsideration of the clerk's rejection of his pettition for review is denied The pettition for review is dismissed
(2) All pending motions are moot.