NOTE: This disposition is nonprecedential.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

______________________ 

CLAUS BRENNDOERFER, Collinsville, IL, pro se.

MEEN GEU OH, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by CHAD A.

READLER, ROBERT E. KIRSCHMAN, JR., STEVEN J.

GILLINGHAM; MICHELLE AMY OCHS WINDMUELLER, Office 

of the General Counsel, United States Postal Service, 

Washington, DC.

______________________ 
2 BRENNDOERFER v. USPS

Before REYNA, SCHALL, and WALLACH, Circuit Judges.

Opinion for the court filed PER CURIAM. 

Concurring opinion filed by Circuit Judge WALLACH. 

PER CURIAM. 

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 Serv., 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.

DISCUSSION

I 

In 1997, Mr. Brenndoerfer, a preference eligible veteran, began working with the United States Postal Service 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 eventually obtained a position as a full-time 

Maintenance Mechanic.

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 Systems Protection Board challenging 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 

negotiations, the parties came to an 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 October 31, 2016, at 
BRENNDOERFER v. USPS 3

which point Mr. Brenndoerfer either would retire pursuant 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 Board approved the settlement in its Initial Decision. 

Because Mr. Brenndoerfer did not seek review of the 

Board’s decision by the full Board, 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 

court received Mr. Brenndoerfer’s petition for review of 

the Board’s decision to dismiss the case as settled.

II

Before addressing the merits, an appeals court 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 issues notice of the final order or decision of the 

Board.” 5 U.S.C. § 7703(b)(1)(A).1 If that statutory 

deadline 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. Dep't of the Army, 405 F.3d 

1349, 1360 (Fed. Cir. 2005) (“Compliance with the filing 

deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our 

exercise 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 it was issued.
4 BRENNDOERFER v. USPS

Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984) (holding 

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 jurisdictional). 

With its July 8, 2016 Initial Decision pertaining to 

Mr. Brenndoerfer, the Board included a “Notice to Appellant,” explaining that the initial decision would become 

final on August 12, 2016. App’x 5. The Board also included 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 Board’s Initial Decision became 

final on August 12, 2016, resulting in a deadline of October 11, 2016. Here, the first papers filed by Mr. Brenndoerfer with the Court were received 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

COSTS

Each party shall bear its own costs.
NOTE: 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.

______________________ 

WALLACH, Circuit Judge, concurring dubitante. 

Because I am bound by our precedent, see Deckers 

Corp. v. United States, 752 F.3d 949, 959 (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 Brenndoerfer’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 established 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 of 
2 BRENNDOERFER v. U.S. POSTAL SERV. 

Health & Human Servs., 834 F.3d 1361, 1364 n.2 (Fed. 

Cir. 2016). Therefore, I respectfully concur dubitante.