Darek J. Kitlinski v. Department of Justice

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAREK J. KITLINSKI,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2023-1961
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-15-0088-M-1.
______________________
ON MOTION
______________________
Before L OURIE, H UGHES , and CUNNINGHAM , Circuit
Judges.
P ER CURIAM .
O R D E R
The Department of Justice moves to dismiss the peti-
tion for review as untimely. Darek J. Kitlinski opposes.
We grant the motion and dismiss.
Mr. Kitlinski appealed to the Merit Systems Protec-
tion Board alleging a violation of his rights under the
Case: 23-1961 Document: 14 Page: 1 Filed: 07/10/2023

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KITLINSKI v. DOJ 2
Uniformed Services Employment and Reemployment
Rights Act of 1994. On March 23, 2023, the Board issued
notice of its final decision dismissing Mr. Kitlinski’s
appeal. ECF No. 5 at 60. On May 19, 2023, Mr. Kitlinski
mailed his petition for review, ECF No. 12 at 8, which was
not received by the court until May 24, 2023, ECF No. 1-2
at 1 (stamped receipt date); see ECF No. 12 at 7.
Under 5 U.S.C. § 7703(b)(1)(A), “a petition to review a
final order or final decision of the Board . . . . shall be filed
within 60 days after the Board issues notice of the final
order or decision of the Board.” “[F]iling requires actual
receipt by the court, not just timely mailing,” and this
timeliness requirement is jurisdictional, which “precludes
equitable exceptions.” Fedora v. Merit Sys. Prot. Bd., 848
F.3d 1013, 1016 (Fed. Cir. 2017); see Fed. R. App.
P. 25(a)(2)(A). Because Mr. Kitlinski’s petition was not
filed within the 60-day statutory deadline, we must
dismiss.
Accordingly,
I T I S O RDERED T HAT :
(1) The motion to dismiss is granted. The petition for
review is dismissed.
(2) Each side shall bear its own costs.
July 10, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1961 Document: 14 Page: 2 Filed: 07/10/2023

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