Gibson v. Dept. Of the Army

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit KARL GIBSON, Petiti0ner, V. DEPARTMENT OF THE ARMY, Resp0ndent. 2011-3153 .. Petiti0n for review of an arbitrator’s decision in FMSC no. 101028-O0325-8 by Ge0ffrey L. Pratte. ON MOTION Bef0re RADER, Chief Judge, DYK and O'MALLEY, Circuit Judges. PER CUR1AM. 0 R D E R The Department of the Army moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss KarI Gi.bs0n’s petition for review as untimely Gibs0n responds The Army replies \ GlBSON V. ARMY 2 On October 26, 2010, an arbitrator dismissed Gibson’s grievance. Gibson admits that he received the arbitrator’s decision by February 10, 2011. Gibson’s petition for review was received by the court on June 13, 2011, 123 days later. A petition for review of an arbitrator's decision must be filed within 60 days of receipt of notice of the decision 5 U.S.C. §§ '7121(f), 7703(b)(1). The 60 day filing period is "statutory, mandatory, [and] jurisdictional." See M0nzo v. Dept. of Trcmsp., 735 F.2d 1335, 1336 (Fed. Cir. 198-4); see also Oja v. Dept. of the Arm,_'y, 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 this petition was not timely received by this court, it must be dismissed Bowles v. Ru,ssell, 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 ls ORDERED TiiAT: (1) The Army’s motions are granted. Gibson’s petition is dismissed (2) Each side shall bear its own costs. 3 GIBSON V. A.RMY FOR THE COURT N0V 4 /s/ J an Horbaly Date J an Horba1y Clerk cc: Karl Gibson E11en M. Lynch, Esq. s20 Issued As A Mandate: 4 _ _ FE w.s. cows 0'FlI='\PPsALs ron ms FEoEaA»_ rincon NOV 14 2011 .|ANHDRBALY CLElI£