Zervas v. United States ( 1996 )

July 23, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1199
JOHN T. ZERVAS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
John T. Zervas on brief pro se.
Donald K. Stern, United States Attorney, and Sara Miron Bloom,
Assistant United States Attorney, on brief for appellees.
Per Curiam. The district court dismissed the complaint
in this case, apparently both for lack of merit and for want
of jurisdiction.
If Zervas' complaint is construed as a claim to have
suffered age discrimination, the complaint was time barred
since it was filed more than 180 days after the alleged
discriminatory act. See Castro v. United States, 775 F.2d
399, 403 (1st Cir. 1985) ("[I]n lieu of pursuing
administrative relief, [a federal employee claiming age
discrimination] may proceed directly to federal district
court . . . no later than 180 days from the alleged
discriminatory act."); 29 U.S.C. 633a(d). If the complaint
is construed as an appeal of the decision by the Merit
Systems Protection Board denying Zervas' claim to have his
sick leave reinstated, the complaint was not only untimely
but also filed in the wrong court. 5 U.S.C. 7703(b)(1)
(appeal of final order of Board "shall be filed in the United
States Court of Appeals for the Federal Circuit . . . within
30 days after the petitioner received notice of the final
order of decision of the Board").
Since abiding by a limitation period is a jurisdictional
prerequisite to actions against the federal government,
Lavery v. Marsh, 918 F.2d 1022, 1027 n.7 (1st Cir. 1990), the
district court lacked jurisdiction to hear the complaint,
however construed.
Affirmed.
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