Opinion
No. 2009-3024.
December 2, 2008.
Petition for review of the Merit Systems Protection Board in SF0752080072-I-1.
Doris Cedeno, Pacific Grove, CA, pro se.
David M. Hibey, Department of Justice, Washington, DC, for Respondent.
Before MICHEL, Chief Judge, RADER and PROST, Circuit Judges.
ON MOTION
ORDER
The court treats Doris Cedeno's correspondence concerning the timeliness of her petition for review as a motion for reconsideration of the court's previous rejection of her petition for review as untimely.
On August 5, 2008, the Merit Systems Protection Board issued a final decision in Cedeno v. Social Security Admin., No. SF-0752-08-0072-I-1, 109 M.S.P.R. 697, specifying 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. The Board's records reflect that Cedeno received the Board's decision on August 8, 2008. The court received Cedeno's petition for review 62 days later, on October 9, 2008.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 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").
Cedeno asserts that she originally sent her petition for review to the Board and it was received by the Board on September 29, 2008. However, as the Board's decision informed Cedeno, a petition for review must be timely filed with this court, not the Board. See Fed. Cir. R. 15(a)(2); see also Oja, 405 F.3d at 1355 n. 2 (declining to consider petition for review timely filed based on date of filing with administrative agency).
Because Cedeno's petition for review was received by this court two days late, this court must dismiss Cedeno's petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs.
(3) All pending motions are moot.