Billy Ballard v. Defense Logistics Agency

38 F.3d 1223
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Billy BALLARD, Petitioner,
v.
DEFENSE LOGISTICS AGENCY, Respondent.

No. 94-3004.

United States Court of Appeals, Federal Circuit.

Aug. 26, 1994.

Before MICHEL, RADER, and SCHALL, Circuit Judges.

ORDER

PER CURIAM.

1

Under 5 U.S.C. Sec. 7703, a losing petitioner in a personnel case has 30 days from receipt of the notice of the final decision, including a decision by an arbitrator, in which to file a notice of appeal in this court. In this case, the arbitrator's decision was issued on July 22, 1993. On August 25, 1993, appellant, through his union representative, filed a Grievant's Petition with the Federal Labor Relations Authority in response to the arbitrator's decision. Mere filing of such petition, however, does not toll the 30 day limit.

2

Clearly, the appellant had notice of the arbitrator's decision at least by August 25 because his representative had to have received notice by then, and appellant is bound by his representative's receipt. Yet appellant did not file a notice of appeal in this court until October 1, 1993, after the 30 day filing limit.

3

This statutory filing period is jurisdictional and we lack the power to waive it. Monzo v. Dep't of Transp., Federal Aviation Admin., 735 F.2d 1335, 1336 (Fed.Cir.1984). Therefore, this court lacks subject matter jurisdiction over this appeal, and must dismiss it.

4

Accordingly,

IT IS ORDERED THAT:

5

The appeal be dismissed for lack of jurisdiction.