Franklin v. Department of Veterans Affairs , 562 F. App'x 970 ( 2014 )

Case: 14-3042 Document: 20 Page: 1 Filed: 04/15/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT D. FRANKLIN,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2014-3042
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120454-I-1.
______________________
Before PROST, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
ORDER
The parties have responded to this court’s order con-
cerning whether this petition should be dismissed as
untimely.
On September 18, 2013, the Merit Systems Protection
Board denied Robert D. Franklin’s petition for review of
an initial decision that sustained his removal due to
misconduct. Franklin states in a submission to this court
that he received the Board’s final order on September 21,
2013. The court received his petition for review on De-
Case: 14-3042 Document: 20 Page: 2 Filed: 04/15/2014
2 FRANKLIN v. DVA
cember 2, 2013; which was 75 days after the Board issued
its final order and 72 days after Franklin states that he
received the Board’s final order.
Our review of a Board decision or order is governed by
5 U.S.C. § 7703(b)(1), which provides in relevant part that
“[n]otwithstanding any other provision of law, any peti-
tion for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the
Board.” 5 U.S.C. § 7703(b)(1)(A). The filing period is
“statutory, mandatory, [and] jurisdictional” and the court
does not have the authority to waive the requirement.
Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir.
1984); Pinat v. Office of Pers. Mgmt., 931 F.2d 1544, 1545
(Fed. Cir. 1991); see also Fed. R. App. P. 26(b)(2).
The Department of Veterans Affairs argues that the
petition should be dismissed because it was not timely
received by the court. Franklin states that he timely
placed his petition in the mail. The date of mailing does
not determine the date of filing of the petition for review.
Instead, filing occurs when the petition is received by the
court. Pinat, 931 F.2d at 1546. Because his petition
seeking review of the final order was received past the
statutory deadline for filing the petition, we must dismiss
the petition.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
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