Jackie L. Henderson v. Department of Defense

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# United States Court of Appeals for the Federal Circuit

2010-3081

JACKIE L. HENDERSON,
Petitioner,
V.
DEPARTMENT OF DEFENSE,

Respondent.
Petition for review of the Merit Systems Protection Board in
SF0752090244-1-1.

ON MOTION

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

## ORDER

The court treats Jackie L. Henderson's correspondence concerning the
timeliness of her petition for review as a motion for reconsideration of the court's
previous rejection of her petition for review as untimely.

On November 3, 2009, the Merit Systems Protection Board issued a final
decision in Henderson v. Department of Defense, No. SF-0752-09-0244-1-1, 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 Board's records reflect
that Henderson received the decision on November 10, 2009. The court received
Henderson's petition for review 64 days later, on January 13, 2010.

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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").

Henderson states that she faxed her petition to the court on January 6, 2010.
However, a petition for review may not be filed by facsimile. See Fed. Cir. R. 25(b) ("No
document other than a motion, response to a motion, reply to a response, or letter may
be filed or served by facsimile transmission"). Further, documents other than briefs and
appendices are not timely filed unless received by the clerk "within the time fixed for
filing." See Fed. R. App. P. 26(a)(2)(A). Thus, Henderson's petition was not filed until it
was received by the clerk on January 13, 2010. Because Henderson's petition for
review was not timely filed, this court must dismiss the petition.

Accordingly,

IT IS ORDERED THAT:

Henderson's motion for reconsideration of the clerk's rejection of her petition for
review is denied. The petition for review is dismissed.

FOR THE COURT

MAR 23 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc:

Jackie L. Henderson Austin M. Fulk, Esq.

FILED U.S. COURT OF APPEALS FOR

s17

THE FEDERAL CIRCUIT

MAR 2 3 2010

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JAN HORBALY
CLERK