Unpublished Disposition, 886 F.2d 1321 (9th Cir. 1989)

MEMORANDUM

Walker appeals from the dismissal of his Title VII action for failure to file a claim within 30 days of the final decision of the Merit Systems Protection Board (Board) as required by 5 U.S.C. § 7703(b) (2). Walker alleges that the district court erred in failing to consider principles of equitable tolling, waiver, and estoppel to excuse his late filing. We affirm.

We review independently the district court's determination of subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir. 1983).

Walker concedes that he failed to file within the time limit required by statute. The only issue presented on appeal is whether the 30-day limit of 5 U.S.C. § 7703(b) (2) is jurisdictional. If the limit is jurisdictional, no equitable considerations can be introduced to excuse the delay in filing.

We hold that the district court properly found the 30-day limit of section 7703(b) (2) to be jurisdictional--and thus not subject to equitable considerations--based upon Lofton v. Heckler, 781 F.2d 1390 (9th Cir. 1986). As in the present case, Lofton concerned a Title VII claimant appealing a Board determination under section 7703(b) (2) who missed the filing deadline arguably through no fault of his own. We held:

This court has construed as jurisdictional the thirty-day filing requirement of 5 U.S.C. § 7703(b) (1) which concerns direct appellate review of [Board] decisions not involving claims of discrimination.... This same construction applies to the thirty-day period established by section 7703(b) (2) for review by the district court of Title VII claims initially brought before the [Board].... Thus, under section 7703(b) (2), failure to file within thirty days after receipt of notice of a judicially reviewable action deprives the court of jurisdiction.

Id. at 1392 (citations omitted). The district court thus acted in conformance with Ninth Circuit precedent in dismissing the claim.

Walker's arguments that time limits in a similar statute are interpreted differently or that decisions from other circuits are different than Lofton are not meritorious. We are bound by this circuit precedent which is directly on point.

AFFIRMED.