Stephen W. Gingery v. Department of the Treasury

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# United States Court of Appeals for the Federal Circuit 2009-3238

STEPHEN W. GINGERY,
Petitioner,
V.
DEPARTMENT OF THE TREASURY,

Respondent.
Petition for review of the Merit Systems Protection Board in
CH3443080256-B-1.

Before RADER, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.

## ORDER

The court treats Stephen W. Gingery'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 May 14, 2009, the Merit Systems Protection Board issued a final decision in
Gingery v. Department of the Treasury, No. CH-3443-08-0256-B-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 Gingery's
petition for review on July 14, 2009.

The Board's records reflect that Gingery 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
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

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submission"). Thus, Gingery is deemed to have received the Board's decision on May
14, 2009. Gingery's petition for review seeking review of the Board's decision was
received by the court 61 days later, on July 14, 2009."

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"). Because Gingery's petition for review was received on
July 14, one day late, this court must dismiss Gingery'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.

(3)
All pending motions are moot.

FOR THE COURT

NOV 0 9 2009

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

PILED U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Cc:

Stephen W. Gingery Devin A. Wolak, Esq.

NOV 0 9 2009

$17

JAN HORBALY CLERK

\*
Gingery argues that the Board gave him an incorrect zip code, 20439, for
the filing of a petition for review in this court. Gingery states that according to the United
States Postal Service (USPS) the court's zip code is 20005-7700. Gingery submits a
printout from the zip code finder on the USPS website; however, in his query, Gingery
appears to have transposed two digits and typed "24039" rather than "20439." In any
event, the court's correct zip code is 20439, which is the zip code that Gingery
concedes the Board provided to him.
2009-3238
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