Jacqueline McEachin v. Department of Health and Human Services

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3181
JACQUELINE MCEACHIN,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Petition for review of the Merit Systems Protection Board in
DC0432080740-1-1.
ON MOTION
Before MICHEL, Chief Judge LOURIE and BRYSON, Circuit Judges.
PER CURIAM.
ORDER
The court treats Jacqueline McEachin'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 March 6, 2009, the Merit Systems Protection Board issued a final decision in
McEachin v. Department of Health and Human Servs., No. DC-0432-08-0740-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
McEachin's petition for review on May 6, 2009.
The Board's records reflect that McEachin was registered as an e-filer. Pursuant
to the Board's regulations, an e-filer is deemed to receive a decision on the date it is

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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
submission"). Thus, McEachin is deemed to have received the Board's decision on
March 6, 2009. McEachin's petition for review seeking review of the Board's decision
was received by the court 61 days later, on May 6, 2009.
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 Oia v. Department of the Army, 405 F.3d 1349, 1360 (Fed. Cir.
2005) ("[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to
our exercise of jurisdiction"). Because McEachin's petition for review was received on
May 6, one day late, this court must dismiss McEachin's petition as untimely.
Accordingly,
IT IS ORDERED THAT:
The motion is denied. The petition for review is dismissed as untimely.
Each side shall bear its own costs.
FOR THE COURT
JUL 0 2 2009 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Jacqueline McEachin
Joseph Keller, Esq.
s17
FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JUL 0 2 2009
JAN HOlititud
CLERK
2009-3181 2

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