Carl W. Howard, Sr. v. Merit Systems Protection Board

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

CARL W. HOWARD, SR.,
Petitioner,
V.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.

2010-3130

Petition for review of the Merit Systems Protection
Board in case no. CH0752090771-I-1.

Before RADER, Chief Judge, BRYSON and MOORE, Circuit
Judges.

PER CURIAM.

## ORDER

The court treats Carl W. Howard, Sr.'s correspon-
dence 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. Sepa-
rately, Howard moves for leave to proceed in forma pau-
peris.

On March 19, 2010, the Merit Systems Protection
Board issued a final decision in Howard v. Dep't of Veter-

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ans Affairs, No. CH-0752090771-I-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 How-
ard's petition for review on May 21, 2010.

The Board's records reflect that Howard was regis-
tered 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 sub-
mission"). Thus, Howard is deemed to have received the
Board's decision on March 19, 2010. Howards petition for
review seeking review of the Board's decision was re-
ceived by the court 63 days later, on May 21, 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, man-
datory, [and] jurisdictional." Monzo v. Dep't of Transp. ,
735 F.2d 1335, 1336 (Fed. Cir. 1984); see also Oja v. Dep't
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 jurisdic-
tion").

Howard states that his petition "was sent in a timely
manner." 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 Howard's petition for review was received on
May 21, three days late, this court must dismiss Howard's
petition as untimely.

Accordingly,

IT IS ORDERED THAT:

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(1) The motion for reconsideration is denied. The pe-
tition for review is dismissed as untimely.

(2) The motion for leave to proceed in forma pauperis
is granted.

(3)
Each side shall bear its own costs.

FOR THE COURT

.

AUG 2 2010
Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Carl W. Howard, Sr.
Sara B. Rearden, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 02 2010

JAN HORBALY
CLERK