N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
CLIFFORD W. JONES, S R., Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

______________________

2017

- 1624

______________________
Petition for review of the Merit Systems Protection Board in No. CH

- 0432

- 13

- 1527 -B- 1.

______________________

Decided: November 14, 2017

______________________

C LIFFORD W. J ONES
, S R
., Cass Lake, MN, pro se.

A LISON V ICKS , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by C HAD A.
R EADLER
, R OBERT E. K IRSCHMAN
, J R
., C LAUDIA B URKE ; J EFFREY S. D AVIS
, A LAN S. D ORN
, C RAIG H ERKAL , Office of the General Counsel, United States Department of Health and Human Services, Chicago, IL.

______________________JONES v. HHS 2

Before M OORE
, R EYNA
, and T ARANTO
, Circuit Judges.

P ER C URIAM

. Clifford W. Jones, Sr. appeals from a final order of the Merit Systems Protection Board ( Board) affirming his removal based on unacceptable performance. Because Mr. Jones did not file a timely petition for review, we dismiss for lack of jurisdiction.

B ACK GROUND
Mr. Jones worked as a Supervisory Financial Ma nagement Specialist for the Department of Health and Human Services ( Agency) at the Indian Health Service Cass Lake Hospital i n Cass Lake , Minnesota from Febr uary 19, 2008 to May 20, 2011. T he Agency re moved him after finding unacceptable performance in three crit ical elements of his position.

Mr. Jones filed a n individual right of a ction appeal (IRA appeal) alleging whistleblower retaliation

. T he Administrative Judge (AJ) dismissed the IRA appeal for lack of jurisdiction finding no non

- frivolous allegation that he had made a protected disclosure. The Board agreed with the dismissal of the IRA appeal, but found that Mr. Jones was entitled to review of his removal

. In the r emoval appeal, the AJ fo und that substantial evidence supported the Agency’s removal of Mr. Jones for una cceptable performance

. Mr. Jones filed a petition for review with the Board . T he Board issued a final order denying his petition on December 8, 2016. Mr. Jones petitioned t his c ourt for review. W e received his petition on February 7, 2017.

D ISCUSSION
Before addressing the merits, we must ensure that we have jurisdiction over the mat ter appealed. See Steel Co. v. Citizens for a Better Env ’t , 523 U.S. 83, 94

– 95 (1998).JONES v. HHS 3

Our review of final Board orders is limited to those pet itions “filed within 60 days after the Board issues notice of the final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A). S tatutory time limits for appeals are jurisdictional and cannot be equitably tolled or waived. Bowles v. Russell , 551 U.S. 205, 209 (2007) ; Fedora v. Merit Sys. Prot. Bd. , 848 F.3d 1013, 1015 (Fed. Cir. 2017).

To be timely filed, this c ourt must receive a petition for review by the due date. Fed. R. App. P. 25(a)(2)(A).
T he Board issued notice of its final order on December 8, 2016, making Mr. Jones’ petition due on February 6, 2017. 5 U.S.C. § 7703(b)(1) (A) . We did not receive Mr. Jones’ petition until Februar y 7, 2017. Because “filing requires actual receipt by the court,” Fedora , 848 F.3d at
1016 , Mr. Jones did not file a timely petition.

Mr. Jones asks that we recognize his efforts to mail the petition on time and the impact of the weather in delaying del ivery. While we recognize that Mr. Jones mailed his petition on February 3, 2017, we are bound by prior precedent holding that we do not have the authority to equitably toll the statutory deadline in § 7703(b)(1) (A)

. See, e.g.

, Fedora , 848 F.3d at 1017. Because we receive d the petition after the 60

- day statutory period for appeal expired , we do not have jurisdiction to consider the merits of the case.

C ONCLUSION
For the reasons stated above, we find that we are without jurisdiction to consider this appeal and therefore dismiss

. C OSTS

No costs

.