Robert Southerland v. Department of Defense

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3182
ROBERT SOUTHERLAND,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Petition for review of the Merit Systems Protection Board in
SF0752080706-I-1.
ON MOTION
Before MICHEL, Chief Judge, LOURIE and BRYSON Circuit Judges.
PER CURIAM.
ORDER
The court treats Robert Southerland's letter concerning his petition for review as
a motion for reconsideration of the court's previous rejection of his petition for review as
untimely.
On December 30, 2008, an Administrative Judge of the Merit Systems Protection
Board issued an initial decision sustaining the agency's suspension of Southerland.
The decision stated that it would become the Board's final decision on February 3, 2009
unless Southerland filed a petition for review with the Board. Southerland did not file a
petition for review with the Board. The decision also informed Southerland that any
petition for review seeking review by this court would be due within 60 days after the
Board's decision became final. Southerland's petition, seeking review by this court, was

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received by this court on April 13, 2009. On that same day, the clerk of this court
returned the petition for review to Southerland, informing Southerland by letter that to
be timely filed the petition had to be received by the court within 60 days from the date
of the final decision, i.e., on or before April 6, 2009. In his motion, Southerland states
that he mailed the petition on April 3, 2009 by certified mail.
Our review of a Board decision or order is governed by 5 U.S.C. § 7703(b)(1),
which provides that "[n]otwithstanding any other provision of law, any petition for review
must be filed within 60 days after the date the petitioner received notice of the final
order or decision of the board." This filing period is "statutory, mandatory, [and]
jurisdictional." Monzo v. Dep't of Transportation, 735 F.2d 1335, 1336 (Fed. Cir. 1984);
see also Bowles v. Russell, 551 U.S. 205 (2007) (the timely filing of a notice of appeal
in a civil case is a jurisdictional requirement that cannot be waived). A petition must be
received by this court by the due date; placing the petition in the mail on or before the
due date does not establish timeliness. Fed. R. App. P. 25(a)(2)(A).
Because Southerland's petition was not received within 60 days of the date the
Board's decision became final, we must dismiss his petition as untimely.
Accordingly,
IT IS ORDERED THAT:
Southerland's petition is dismissed.
All sides shall bear their own costs.
FOR THE COURT
JUL 0 2 2009 /s/ Jan Horbalv
Date Jan Horbaly FILED
us. COURT OF APPEALS FOR
Clerk THE FEDERAL CIRCUIT
2009-3182 2 JUL 02 2009
JAN HORbttLY
CLERK

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cc: Robert Southerland
Vincent D. Phillips, Esq.
s19
ISSUED AS A MANDATE: JUL 0 2 2009
2009-3182 3

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