956 F2d 268 Billings v. Dole

956 F.2d 268

Douglas E. BILLINGS, Petitioner,
v.
Elizabeth DOLE, Secretary of Labor; Tennessee Valley
Authority, Respondents.

No. 91-4124.

United States Court of Appeals, Sixth Circuit.

Feb. 25, 1992.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER


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1

Respondents move to dismiss this petition for review of the Secretary's final decision for lack of appellate jurisdiction. Petitioner has responded in opposition to the motion. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the documents before the court indicates that the Secretary's final decision was issued on September 24, 1991. Petitioner's petition for review of the Secretary's final decision was received in this court on November 27, 1991, two days after the expiration of the 60 day period provided for a petition for review under 42 U.S.C. § 5851.

3

Upon consideration, we conclude that the petition for review must be dismissed. 42 U.S.C. § 5851(c) provides, in pertinent part, that a petition for review of the Secretary's final decision "must" be filed in the court of appeals within 60 days from the issuance of the decision. This statutory review period is jurisdictional and cannot be enlarged by the appellate court. Cf. Energy Probe v. NRC, 872 F.2d 436, 437 (D.C.Cir.1989) (per curiam). Petitioner's contention that he is permitted an additional three days in which to mail the petition is without merit. See Danko v. Director, OWCP, 846 F.2d 366, 369 (6th Cir.1988) (per curiam). Here, the petition was filed beyond the review period and this court therefore lacks jurisdiction.

4

Accordingly, the motion to dismiss is granted and the appeal is hereby dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.