Francine Nesbary v. Department of the Treasury

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCINE NESBARY,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
______________________
2014-3046
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-13-0588-I-1.
______________________
ON MOTION
______________________
Before P ROST , O’M ALLEY , and T ARANTO, Circuit Judges.
P ER CURIAM .
O R D E R
The Department of the Treasury moves to dismiss
this petition for review as untimely. Francine Nesbary
submits a response opposing the motion to dismiss.
A September 11, 2013 initial Merit Systems Protec-
tion Board decision dismissed Nesbary’s appeal for lack of
jurisdiction. Nesbary did not request full Board review
Case: 14-3046 Document: 14 Page: 1 Filed: 03/27/2014

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NESBARY v. TREASURY 2
and the decision became final on October 16, 2013. The
court received her petition for review on December 17,
2013, which was 62 days after the Board decision became
final. Because the due date for the petition, December 15,
fell on a Sunday, the petition would have been timely if
received on or before December 16.
To be timely, the court must receive the petition for
review no later than 60 calendar days after the date the
initial decision becomes final. See 5 U.S.C.
§ 7703(b)(1)(A); 5 C.F.R. § 1201.113. This filing period is
“statutory, mandatory, [and] jurisdictional” and the court
does not have the authority to waive the requirements.
Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir.
1984); Pinat v. Office of Personnel Management, 931 F.2d
1544, 1546 (Fed. Cir. 1991); see also Fed. R. App. P.
26(b)(2).
Because Nesbary’s petition for review as to the under-
lying decision was filed past the statutory deadline, we
must dismiss the petition.
Accordingly,
I T I S O RDERED T HAT :
(1) The motion to dismiss is granted. The petition is
dismissed.
(2) All other pending motions are denied as moot.
(3) Each side shall bear its own costs.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
ISSUED AS A MANDATE: March 27, 2014
Case: 14-3046 Document: 14 Page: 2 Filed: 03/27/2014

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