George Alcantar v. Internal Revenue Service

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

GEORGE ALCANTAR,
Petitioner,
v.
INTERNAL REVENUE SERVICE,
Respondent.

2011-3010

Petition for review of an arbitrator's decision in case
no. NB2564 by Norman Brand.

## ON MOTION

Before LOURIE, MAYER, and DYK, Circuit Judges.
PER CURIAM.

## ORDER

George Alcantar moves for leave to proceed in forma
pauperis and submits correspondence requesting that the
court accept his untimely petition for review. The court
considers whether the petition should be dismissed.

On June 28, 2010, the arbitrator issued a final deci-
sion in Alcantar v. Department of Veterans Affairs., No.

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NB2564. In his petition for review, Alcantar states that
he received the arbitrator's decision on June 30, 2010.
The court received Alcantar's petition for review 63 days
later, on September 1, 2010.

A petition for review of an arbitrator's decision must
be filed within 60 days of receipt of the decision. See 5
U.S.C. §§ 7121(f), 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 Oja v. Department of the Army, 405 F.3d 1349, 1360
(Fed. Cir. 2005) ("[compliance with the filing deadline of
5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of
jurisdiction").

Alcantar states that he mailed his petition to the
court on August 23, 2010 and that he was informed by
postal employees that "it would be received by the Court
on Thursday, August 26, 2010." However, documents
other than briefs and appendices are not timely filed
unless received by the clerk "within the time fixed for
filing." See Fed. R. App. P. 26(a)(2)(A). Thus, Alcantar's
petition was not filed until it was received by the clerk on
September 1, 2010. Because Alcantar's petition for review
was received by this court three days late, this court must
dismiss Alcantar's petition as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) Alcantar's motion for reconsideration of the clerk's
rejection of his petition for review is denied. The petition
for review is dismissed.

(2) All pending motions are moot.

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FOR THE COURT

DEC 0 8 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: George Alcantar
William P. Rayel, Esq.
s17

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK