N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CLAUS BRENNDOERFER, Petitioner

v.

UNITED STATES POSTAL SERVICE, Respondent

______________________

2017

- 1085

______________________ Petition for review of the Merit Systems Protection Board in No. CH

- 0752

- 15

- 0640 -I- 1.

______________________

Decided: June 8, 2017

______________________
C LAUS B RENNDOERFER , Collinsville, IL, pro se.

M EEN G EU O H , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by C HAD A. R EADLER , R OBERT E. K IRSCHMAN , J R

. , S TEVEN J. G ILLINGHAM ; M ICHELLE A MY O C HS W INDMUELLER , Office of the General Counsel, United States Postal Service, Washington, DC.

______________________BRENNDOERFER v. USPS 2

Before R EYNA , S CHALL , and W ALLACH , Circuit Judges.
Opinion for the court filed P ER C URIAM

. Concurring opinion filed by Circuit Judge W ALLACH

. P ER C URIAM

. Mr. Claus Brenndoerfer petitions for review of the Merit Systems Protection Board ’ s July 8, 2016 Initial Decision dismissing his employment termination appeal pursuant to a settlement agreement. Brenndoerfer v. United States Postal Se rv

. , No. CH

- 0752

- 15

- 0640 -I- 1, 2016 WL 3745232 ( M.S.P.B. July 8, 2016) . Because Mr

. Brenndoerfer failed to file a timely petition for review to this court, we must dismiss for lack of jurisdiction.

D ISCUSSION

I
In 1997, Mr. Brenndoerfer, a preference eligible ve teran, began working with the United States Postal Se rvice as a part

- time Distribution Clerk in Litchfield, Illinois. In 1998, Mr. Brenndoerfer was reassigned by the Postal Service to his most recent duty station in St. Louis, Missouri, and eve ntually obtained a position as a full

- time Maintenance Mech anic.
On July 25, 2015, the Postal Service removed Mr. Brenndoerfer from his position as a Level 7 Maintenance Mechanic. On August 24, 2015, Mr. Brenndoerfer filed a petition with the Merit System s Protection Board cha llenging the Postal Service ’s decision to terminate his employment. On December 10, 2015, the Postal Service and Mr. Brenndoerfer, through counsel, agreed to mediate the dispute. In June

, 2016, after a series of settlement negotiati ons, the parties came to a n agreement to resolve Mr. Brenndoerfer’s appeal. As part of the settlement, Mr. Brenndoerfer would receive a lump sum of $17,800 from the Postal Service and would be kept on leave without pay status from August 8, 2015 through O ctober 31, 2016, atBRENNDOERFER v. USPS 3

which point Mr. Brenndoerfer either would retire purs uant to his retirement application or would resign , effective October 31, 2016.
On July 7, 2016, the parties submitted to the Board a fully executed settlement agreement. On July 8, 2016, the B oard approved the settlement in its Initial Decision.

Because Mr. Brenndoerfer did not seek review of the B oard’s decision by the full B oard, the initial decision became final on August 12, 2016. 5 C.F.R. § 1201.113 (stating that initial decision becomes final 35 days after issuance of the initial decision)

. On October 18, 2016

, this

c ourt received Mr. Brenndoerfer’s petition for review of the B oard’s decision to dismiss the case as settled.

II Before addressing the merits, an appeals cou rt must ensure that it has jurisdiction over the matters appealed. See Steel Co. v. Citizens for a Better Env ’t , 523 U.S. 83, 94

– 95 (1998). This court’s review of final Board decisions is limited to those petitions “filed within 60 days after the Board i ssues notice of the final order or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A). 1 If that statutory dea d line is not met, we cannot exercise jurisdiction in the

case. See Fedora v. Merit Sys. Prot. Bd. , 848 F.3d 1013, 1015 (Fed. Cir. 2017); Oja v. De p't of the Army , 405 F.3d 1349, 1360 (Fed. Cir. 2005) (“Compliance with the filing dea d line of 5 U.S.C. § 7703(b)(1) is a prerequisite to our

exer cise of jurisdiction over this case.”); Monzo v. Dep ’ t of

1 Before Congress amended this statute in 2012, the deadline was 60 days after the petitioner received notice of the MSPB’s decision. See 5 U.S.C. § 7703(b)(1) (2011). However, even under the old standard we would lack jurisdiction, because Petitioner asserts on the face of his petition that he received the MSPB’s order on August 19, 2016, the same date i t was issued.BRENNDOERFER v. USPS 4

Transp. , 735 F.2d 1335, 1336 (Fed. Cir. 1984) (holdi ng that the filing deadline under 5 U.S.C. § 7703(b)(1) is “statutory, mandatory [and] jurisdictional”); Bowles v. Russell , 551 U.S. 209, 210 (2007) (holding that statutory time limits for taking an appeal are jurisdic tional)

. With its July 8 , 2016 Initial Decision pertaining to Mr. Brenndoerfer , the Board included a “Notice to Appe llant,” explaining that the initial decision would become final on August 12, 2016 . App’x 5. The Board also i ncluded a “Notice to Appellant Regarding Your Further Review Rights ,” specifically stating that the Federal Circuit “must receive your request for review no later than 60 calendar days after the date this initial decision becomes final ” and that Mr. Brenndoerfer should be “very careful to file on time.” App’x 9. Under § 7703(b)(1), Mr. Brenndoerfer ’s petition was due sixty days after the B oard ’s Initial Decision became final on August 12, 2016, resulting in a deadline of Oct ober 11 , 2016. Here, the first papers filed by Mr. Brennd oerfer with the C ourt were receiv ed on October 18, 2016,

seven days after that deadline. Because Mr. Brenndoerfer ’s petition was filed after the 60

- day statutory period for appeal, this court is without jurisdiction to address the merits of his case.
For the reasons stated above, this case is dismissed.

DISMISSED

C OSTS Each party shall bear its own costs.N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CLAUS BRENNDOERFER, Petitioner

v.

UNITED STATES POSTAL SERVICE, Respondent

______________________

2017

- 1085

______________________ Petition for review of the Merit Systems Protection Board in No. CH

- 0752

- 15

- 0640 -I- 1.

______________________ W ALLACH , Circuit Judge, concurring dubitante

. Because I am bound by our precedent, see Decker s Corp. v. United States

, 752 F.3d 949, 9 59 (Fed. Cir. 2014) ( “[A] later panel is bound by the determinations of a prior panel, unless relieved of that obligation by an en banc order of the court or a decision of the Supreme Court. ” ), I
agree with the majority that Petitioner Claus Brenndoe rfer’s petition must be dismissed for lack of subject matter jurisdiction

, see Maj. Op. 4. However, I reiterate that “[i]t may be time to ask whether” the filing deadline es ta blished by 5 U.S.C. § 7703(b)(1)(A) (2012) is jurisdictional “in light of recent Supreme Court precedent finding some statutory time limits nonjurisdictional.” Jones v. Dep’t ofBRENNDOERFER v. U

. S

. POSTAL S ERV

. 2

Health & Human Servs. , 834 F.3d 1361, 1364 n.2 (Fed. Cir. 2016). Therefore , I respectfully concur dubitante

.