Kenya McQuerter v. Office of Personnel Management

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# United States Court of Appeals for the Federal Circuit

2010-3064
KENYA MCQUERTER,
Petitioner,
V.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board
in case no. CH0831090561-1-1.

ON MOTION

Before MICHEL, Chief Judge, FRIEDMAN and LINN, Circuit Judges.
PER CURIAM.

## ORDER

The court treats the Kenya McQuerter's letter, received by the court on
December 28, 2009, as a motion for reconsideration of the court's previous rejection of
her petition for review as untimely. McQuerter also moves for leave to proceed in forma
pauperis.

McQuerter filed an action at the Merit Systems Protection Board, challenging the
Office of Personnel Management's determination that she was not entitled to a lump
sum death benefit payment after the death of her father because she was not listed as
a named beneficiary. The Administrative Judge issued an initial decision affirming
OPM's determination. McQuerter petitioned the full Board for review. The full Board

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denied review, and McQuerter received the Board's final order denying review on
October 6, 2009.

The court initially received McQuerter's petition for review on December 8, 2009,
or 63 days after her receipt of the Board's final order. A petition for review must be
received by the court within 60 days of receipt of the Board's final order. 5 U.S.C. §
7703(b)(1). To be timely filed, the petition must be received by this court on or before
the date that the petition is due. Pinat v. Office of Personnel Management, 931 F.2d
1544, 1546 (Fed. Cir. 1991) (petition is filed when received by this court; court
dismissed petition received nine days late). Because McQuerter's petition was not
timely received by this court, it must be dismissed. 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).

Accordingly,

IT IS ORDERED THAT:

(1)
McQuerter's motion for reconsideration is denied and this petition for
review is dismissed as untimely filed.

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

FOR THE COURT

MAR 23 2010

/s/ Jan Horbaly

FILER
U.S. GOURT OF APPEALS POR
THE FEDERAL CIRCUIT

Date

Jan Horbaly
Clerk

MAR 2 3 2010

cc:

Kenya McQuerter

Jeffrey A. Regner, Esq.

JAN HORBALY

s8

CLERK

\*
Sixty days after October 6, 2009 would be December 5, 2009. However,
because that date was a Saturday, the due date for the court to receive McQuerter's
petition is the next business day, i.e., Monday, December 7, 2009. Fed. R. App. P.
26(a)(1)(C). Her petition for review was received by the court on Tuesday, December 8,
2009, one day beyond the due date.

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