Dom Wadhwa v. Department of Veterans Affairs

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# United States Court of Appeals for the Federal Circuit

2010-3071
DOM WADHWA,

Petitioner,
V.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in
PH1221090295-W-1.

Before MICHEL, Chief Judge, FRIEDMAN and LINN, Circuit Judges.
PER CURIAM.

# ORDER

The court treats Dom Wadhwa's correspondence concerning the timeliness of his
petition for review as a motion for reconsideration of the court's previous rejection of his
petition for review as untimely.

On October 30, 2009, the Merit Systems Protection Board issued a final decision
in Wadhwa v. Department of Veterans Affairs, No. PH-1221-09-0295-W-1, 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 court received
Wadhwa's petition for review on January 4, 2010.

The Board's records reflect that Wadhwa was registered as an e-filer. Pursuant
to the Board's regulations, an e-filer is deemed to receive a decision on the date it is

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served via electronic mail. See 5 CFR § 1201.14(m)(2) ("MSPB documents served
electronically on registered e-filers are deemed received on the date of electronic
submission"). Thus, Wadhwa is deemed to have received the Board's decision on
October 30, 2009. Wadhwa's petition for review seeking review of the Board's decision
was received by the court 66 days later, on January 4, 2010.

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) ("[compliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to
our exercise of jurisdiction").

Wadhwa states that his petition "was timely filed, [but] a delay occurred because
it was sent to a central location by the United States Postal Service for processing prior
to delivery to this Honorable Court." However, in order to be timely, a petition for review
must be received by the court, not simply placed in the mail system, within the filing
deadline. See Fed. R. App. P. 25(a)(2)(A) ("filing is not timely unless the clerk receives
the papers within the time fixed for filing.") Because Wadhwa's petition for review was
received on January 4, six days late, this court must dismiss Wadhwa'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.

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# FOR THE COURT

MAR 2 4 2010

Date

Cc:

Dom Wadhwa

Lauren A. Weeman, Esq.

s17

/s/ Jan Horbaly
Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAR 2 4 2010

JAN HORBALY
CLERK

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