TATE, Circuit Judge:
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
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)
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.
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).
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.
Accordingly, we granted the respondent's motion to dismiss the petition for review as untimely, and the petitioner's petition for review is DISMISSED.
We note that 28 U.S.C. § 2344 provides a period of sixty days in which to file a petition for review as § 7703 provides specifically for review of decisions of the Merit Systems Protection Board. Its thirty-day limit provides the rule for this case.