Robert B. Miller, Petitioner, v. United States Postal Service, Respondent, 685 F.2d 148 (5th Cir. 1982)

Robert Miller, a Distribution Clerk in the Main Post Office, Dallas, Texas was removed from his employment with the Postal Service (the "Service") effective October 31, 1980. From the final order of the Merit Systems Protection Board (the "Board"), finding that the Service had sustained (1) its charge that Miller was absent without leave and (2) its resulting dismissal of Miller, Miller brings this appeal.

The Service filed a motion to dismiss the petition for review as untimely filed. For the reasons stated below, we grant the motion, and dismiss the appeal.

The Context Facts

Robert Miller was hired as a Distribution Clerk in the Main Post Office in Dallas, Texas. Miller was removed from his position effective October 31, 1980 for being absent without leave from August 6, 1980 to September 12, 1980, failure to keep his supervisor aware of his status and failure to present adequate medical documentation. He filed a successful agency appeal, but on the Service's petition for review, the Board reversed the decision of the agency hearing officer and sustained the agency's decision to remove Miller.

The Board's opinion and order was dated November 25, 1981. The order also notified Miller of his right to seek judicial review of the Board's action and that such review should be filed in the appropriate court no later than thirty days after his receipt of this order. Miller received this notice on December 4, 1981. His present petition for review, sent by mail, was received and filed in this court on January 7, 1982, i.e., thirty-four days after he had received notice of the Board's order.

Timeliness of the Appeal

The Service filed in this court a motion to dismiss the petition for review as untimely filed. Thereby, it contends that the statutory period (thirty days) accorded to Miller under 5 U.S.C. § 7703(b) (1)¹  to file his petition for review ended January 4, 1982. For reasons to be stated, we agree that the petition for review was untimely filed and must be dismissed.

The statutory period within which to file a petition to review a final order or final decision of the Merit Systems Protection Board "30 days after the date the petitioner received notice of the final order or decision of the Board." 5 U.S.C. § 7703(b) (1). Jackson v. United States Postal Service, 666 F.2d 258, 259 (5th Cir. 1982). Since Miller received notice of the final order on December 4, 1981, the thirty-day period allowed by section 7703(b) (1) technically ended on Sunday, January 3, 1982. However, as this period ended on a Sunday, Fed.R.App.R. 26(a) allows an extension to the end of the next day which is not a Saturday, Sunday, or legal holiday-in this case Monday, January 4, 1982. Miller's petition was not filed with this court until January 7, 1982.

In opposition to the motion to dismiss, Miller claimed that the petition was mailed January 2, 1982, in time sufficient to allow timely filing on January 4.²  Miller's argument is that, as the petition was mailed within the applicable statutory period, the appeal is timely.

This argument must fall, however, because the petition must be received by the clerk within the applicable period, not mailed or postmarked during this period. Fed. R. App. P. 25(a) (quoted at note 4 below). Cf., United States v. Miller, 666 F.2d 991, 993 (5th Cir. 1982); Ward v. Atlantic Coast Line Railroad, 265 F.2d 75, 79-80 (5th Cir. 1959), rev'd on other grounds, 362 U.S. 396, 80 S. Ct. 789, 4 L. Ed. 2d 820 (1960).

The Federal Rules of Appellate Procedure apply to the review of agency orders. Fed. R. App. P. 20 provides that "(a)ll provisions of these rules are applicable to review or enforcement of orders of agencies, except that Rules 3-14 and Rules 22 and 23 are not applicable." Fed. R. App. P. 15 states that review of an order of an administrative agency "shall be obtained by filing with the clerk of a court of appeals which is authorized to review such order, within the time prescribed by law," a petition for review. The applicable "time prescribed by law" in this case is thirty days, 5 U.S.C. § 7703(b) (1).³  Fed. R. App. P. 25 states the general provisions for filing and service. Rule 25 pertinently provides that, if a filing is mailed, such "filing shall not be timely unless the papers are received by the clerk within the time fixed for filing."⁴ 

Assuming that petitioner did mail his petition for review on January 2, 1982, (within the thirty-day period), his appeal is still untimely filed because it was not received by the clerk within the time fixed for filing.

Conclusion

Accordingly, we granted the respondent's motion to dismiss the petition for review as untimely, and the petitioner's petition for review is DISMISSED.

DISMISSED.