Rakhmatulla Asatov v. Department of the Army

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKHMATULLA ASATOV,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3039
______________________
Petition for review of the Merit Systems Protection
Board in No. PH3330120309-I-1.
______________________
ON MOTION
______________________
Before N EWMAN, R EYNA, and WALLACH , Circuit Judges.
P ER CURIAM .
O R D E R
The Department of the Army moves to dismiss the pe-
tition for review for lack of jurisdiction. Rakhmatulla
Asatov responds to the court’s order directing him to show
cause as to why his appeal should not be dismissed as
untimely.
Case: 13-3039 Document: 11 Page: 1 Filed: 06/19/2013

-- 1 of 3 --

RAKHMATULLA ASATOV v. ARMY 2
On August 2, 2012, the Merit Systems Protection
Board (“Board”) issued an initial decision denying Mr.
Asatov’s request for corrective action. On September 6,
2012, the initial decision became the final decision of the
Board. The court received Mr. Asatov’s petition for review
on November 6, 2012, or 61 days after the Board’s deci-
sion became final.
Our review of a Board decision or order is governed by
5 U.S.C. § 7703(b)(1), which provides in relevant part that
“[n]otwithstanding any other provision of law, any peti-
tion for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the
Board.” 5 U.S.C. § 7703(b)(1)(A) (2012). This filing period
is “statutory, mandatory, [and] jurisdictional.” Monzo v.
Dep’t of Transp., 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).
Mr. Asatov argues that he “filed” his petition for re-
view with the United States Postal Service. In order for a
petition for review to filed, however, it must be received
by this court. Mr. Asatov also argues that equitable
tolling should be applied in this case. As explained above,
the 60-day filing deadline is statutory, mandatory and
jurisdictional and cannot be waived or equitably tolled.
Because Mr. Asatov’s petition was not received within 60
days of the date he received the Board's decision, we must
dismiss his petition as untimely.
Case: 13-3039 Document: 11 Page: 2 Filed: 06/19/2013

-- 2 of 3 --

RAKHMATULLA ASATOV v. ARMY 3
Accordingly,
I T I S O RDERED T HAT :
The motion to dismiss is granted.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk
s25
Issued As A Mandate: June 19, 2013
Case: 13-3039 Document: 11 Page: 3 Filed: 06/19/2013

-- 3 of 3 --