John G. Baumgarten v. Department of the Army

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN G. BAUMGARTEN,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2014-3139
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-315I-12-0176-I-1.
______________________
Before O’MALLEY , WALLACH , and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
John G. Baumgarten responds to this court’s order di-
recting him to show cause why this petition should not be
dismissed as untimely. The Department of the Army also
responds.
On February 28, 2014, the Merit Systems Protection
Board dismissed the underlying petition for review as
untimely. This court received his petition for review on
May 12, 2014, which was 73 days after the Board issued
its final order.
Case: 14-3139 Document: 10 Page: 1 Filed: 08/25/2014

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BAUMGARTEN v. ARMY 2
The time for filing a petition for review from a Board
decision or order is governed by 5 U.S.C. § 7703(b)(1),
which provides in relevant part that “any petition 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). In order to be timely, a petition for
review must be received by the court within the filing
deadline. Pinat v. Office of Pers. Mgmt., 931 F.2d 1544,
1546 (Fed. Cir. 1991) (petition is filed when received by
this court); see also Fed. R. App. P. 25(a)(2)(A). This filing
period is “statutory, mandatory, [and] jurisdictional.”
Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir.
1984).
Because Baumgarten’s petition concerning the
Board’s final order was recevied after the statutory dead-
line for filing a petition, we must dismiss the petition.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition is dismissed.
(2) All pending motions are denied as moot.
(3) Each side shall bear its own costs.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
Case: 14-3139 Document: 10 Page: 2 Filed: 08/25/2014

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