Coleman v. Department of the Army

[537] Pursuant to Rule 178, respondent moves to dismiss petitioner’s appeal of a Merit Systems Protection Board (board) decision (No. AT075299059) on the ground that the petition for review has not been timely filed. We agree with respondent and accordingly must dismiss the petition. On May 18, 1979, petitioner, a Food Service Worker Leader with the United States Army Medical Department Activity at Martin Army Hospital in Fort Benning, Georgia, was removed from employment because of his repeated absences without leave. In his appeal to the board, petitioner argued that his attendance problem was attributable to alcoholism, and he should therefore be afforded the opportunity for rehabilitation. The board found that petitioner had in fact been enrolled in a 90-day rehabilitation program in 1978 by his employer and thus affirmed the removal. On July 30, 1978, the board denied petitioner’s appeal. Petitioner was informed at that time of his right to appeal the board’s determination to this court or to the appropriate United States court of appeals within 30 days. Petitioner acknowledges that he received this notice on August 4, 1980. By letter dated September 4, 1980, filed herein September 8, 1980, petitioner’s attorney (not admitted to the bar of this court) notified this court that his client wished to exercise his right of appeal. For purposes of this case we have treated this letter as a petition for review. The attorney requested an extension of time to file the appeal because his client was allegedly unable to timely engage counsel to prepare the appeal due to a leg injury. The procedure for obtaining the court’s review of board decisions is set forth in Rule 172(a). This rule specifies that the petition for review must be filed within the time prescribed by law. Section 7703(b)(1) of 5 U.S.C. (Supp. III 1979) provides in pertinent 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.” Since petitioner failed to file his petition for review within the 30-day period mandated by 5 U.S.C. § 7703, his appeal must be dismissed. [538] rr is therefore ordered that respondent’s motion is granted; petitioner’s petition for review is dismissed.