John Edward Penn, Jr. v. Department of Defense

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN EDWARD PENN, JR.,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
______________________
2014-3023
______________________
Petition for review of the Merit Systems Protection
Board in No. AT3330120859-I-1.
______________________
P ER CURIAM .
O R D E R
The parties have responded to this court's order di-
recting them to show cause why this petition should not
be dismissed as untimely.
On July 24, 2013, the Merit Systems Protection Board
issued a final order in John Edward Penn, Jr.’s case. The
court received his notice of appeal on September 24, 2013,
which was 62 days after the Board issued its decision.
Our review of a Board decision or order is governed by
5 U.S.C. § 7703(b)(1), which provides in relevant part that
Case: 14-3023 Document: 10 Page: 1 Filed: 05/06/2014

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PENN v. DEFENSE 2
“[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). Penn does not contest
the timeliness of his petition but instead argues that
equitable tolling applies. However, this filing period is
“statutory, mandatory, [and] jurisdictional” and the court
does not have the authority to waive the requirements.
Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir.
1984); Pinat v. Office of Personnel Management, 931 F.2d
1544, 1545 (Fed. Cir. 1991); see also Fed. R. App. P.
26(b)(2).
Because Penn’s petition concerning the Board's final
order was filed after the statutory deadline for filing a
petition, we must dismiss the appeal.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition is dismissed.
(2) 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: 14-3023 Document: 10 Page: 2 Filed: 05/06/2014

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