The opinion of the court was delivered by: RICHEY
Before the Court is the defendants' Motion to Dismiss, opposition thereto presented by the court-appointed counsel for the plaintiff, and supplemental memoranda. For the reasons stated below, the Court has today issued an Order granting the defendants' Motion to Dismiss.
The defendant has moved to dismiss the complaint for lack of subject matter jurisdiction. The defendant contends that the complaint in this action was untimely filed under the governing statute, 5 U.S.C. § 7703(b)(2), and the applicable regulations, 5 C.F.R. § 1201.173. The Court agrees.
The jurisdictional facts are not in dispute. On September 4, 1981, the plaintiff was removed from her GS-6 secretary position at the Maritime Administration in the Department of Transportation. Plaintiff appealed her termination to the Merit Systems Protection Board ("MSPB"). In this appeal the plaintiff alleged that the decision was arbitrary and capricious, that it was a form of prohibited discrimination on the basis of race, sex, and age, and that it was a prohibited form of reprisal against the plaintiff. On August 2, 1982, the MSPB presiding officer sustained the decision to remove the plaintiff. The plaintiff sought judicial review of this decision in the United States Court of Appeals for the District of Columbia Circuit.
In an unpublished opinion, the Court of Appeals determined that the presiding officer's decision contained erroneous instructions regarding how the plaintiff could obtain judicial review of that decision. The Court "remanded [the case] to the Board so that it may enter a fresh order on the basis of which Ms. King may bring a timely action in the District Court." King v. Merit Systems Protection Board, App. No. 82-2171 (D.C. Cir. May 19, 1983).
On July 19, 1983, the MSPB presiding officer reissued the earlier decision with an amended notice detailing how the plaintiff could obtain judicial review. Although issued on July 19, 1983, the amended notice stated that "it will become a final decision of the Merit Systems Protection Board on August 23, 1983", unless a petition for review shall have been filed with the MSPB. Because the sole purpose of the remand was to instruct the plaintiff as to the proper method of obtaining judicial review, the amended notice was very clear in those instructions:
If [plaintiff] wishes to pursue a claim of discrimination in court, the action must be filed in the district court, claiming discrimination, no later than 30 days after the date shown above [August 23, 1983], upon which this initial decision becomes final, or, if petitions for agency review have been filed, no later than 30 days after a final administrative decision.
Notwithstanding any other provision of law, all cases decided under 5 U.S.C. 7702 must be filed within 30 days after the individual received notice of the judicially reviewable action.
In the present case, because the final decision date was designated to be August 24, 1983, more than a month after the actual decision on remand, the plaintiff had to file her complaint in this Court by September 22, 1983. In fact, the plaintiff filed her complaint on September 23, 1983, one day late. The defendants contend that this untimely filing deprives the Court of jurisdiction.
The plaintiff admits that this filing is one day late. Despite her late filing, more than sixty days after the MSPB decision, and more than thirty days from the date the decision was to become a final decision, the plaintiff claims that the statutory time limit ...