Opinion
No. 2008-3118.
April 8, 2008.
Petition for review of the Merit Systems Protection Board in DC-0752-05-0633-I-1.
Before MAYER, LINN, and DYK, Circuit Judges.
ON MOTION
ORDER
The government responds to the court's February 19, 2008, order and moves to dismiss Yolanda C. Gibson-Michaels's recently-docketed appeal for lack of jurisdiction. Gibson-Michaels has not responded.
Gibson-Michaels filed an appeal with the Merit Systems Protection Board concerning her constructive removal from her position at the Federal Deposit Insurance Corporation. On November 14, 2005; the Administrative Judge (AJ) ordered the agency to cancel her constructive removal and reinstate her. The AJ's decision did not address a claim of unlawful discrimination. Nevertheless, Gibson-Michaels filed an appeal at the Equal Employment Opportunity Commission (EEOC). On September 13, 2007, the EEOC denied her petition for review. On January 2, 2008, more than sixty days after receipt of the Board's final order, this court received Gibson-Michaels' petition for review.
This court lacks jurisdiction over a petition for review of a Board decision if the petition for review is not filed within 60 days of the date of petitioner's receipt of the final decision. 5 U.S.C. § 7703(b)(1). This filing period is "statutory, mandatory, [and] jurisdictional." Monzo v. Dep't of Transportation, 735 F.2d 1335, 1336 (Fed. Cir. 1984); see also Bowles v. Russell, 551 U.S. ___, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement that cannot be waived). Additionally, to the extent that Gibson-Michaels is seeking review of the EEOC's decision, this court lacks jurisdiction. 28 U.S.C. § 1295.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. Gibson-Michaels' petition is dismissed.
(2) Each side shall bear its, own costs.