Summary
holding that the filing deadline under 5 U.S.C. § 7703(b) is "statutory, mandatory jurisdictional"
Summary of this case from Brenndoerfer v. U.S. Postal Serv.Opinion
Appeal No. 84-741.
April 6, 1984.
John J. Toomey and Gregory T. Oosterbaan, Chicago, Ill., for petitioner.
Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Sandra P. Spooner, Asst. Director and M. Susan Burnett, Washington, D.C., for respondent.
May Jennings, Washington, D.C., for Merit Systems Protection Bd.
Appeal from the Merit Systems Protection Board.
Before BENNETT, MILLER and SMITH, Circuit Judges.
ORDER
Respondent has moved to dismiss this appeal from the Merit Systems Protection Board (MSPB) on the ground that it is barred by the statute of limitations, 5 U.S.C. § 7703(b)(1) (1982). The statute provides in relevant part:
Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board.
The MSPB order denying petitioner's request for review was received by him on October 11, 1983, and by his attorney on October 14, 1983. The petition for review by this Court was received by the Clerk on November 14, 1983. Under the statute, the date of receipt by petitioner's counsel is irrelevant where petitioner himself actually received notice. Receipt of notice by petitioner on October 11 triggered the statute of limitations and his appeal is late on its face. The 30-day period for appeal is statutory, mandatory, jurisdictional, and bars the claim here. Ramos v. United States, 683 F.2d 396 (Ct.Cl. 1982). Rule 26(c) of the Federal Rules of Appellate Procedure, which allows three extra days after "service of a paper" by mail, is not relevant to this case where the statute speaks of notice. Cf. FED.R.APP.P. 25(a).
IT IS THEREFORE ORDERED that respondent's motion to dismiss is granted.