Nathaniel J. Willingham v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATHANIEL J. WILLINGHAM,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
______________________
2012-3152
______________________
Petition for review of the Merit Systems Protection
Board in No. DC3330100370-I-1.
______________________
Decided: May 9, 2013
______________________
N ATHANIEL J. WILLINGHAM , of Jacksonville, North
Carolina, pro se.
AMANDA L. T ANTUM , Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. D ELERY , Principal Deputy
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and REGINALD T. BLADES , J R., Assistant Director.
______________________

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NATHANIEL WILLINGHAM v. NAVY 2
Before O’MALLEY , SCHALL , and WALLACH , Circuit Judges.
P ER CURIAM .
D ECISION
Nathanial Willingham petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that found jurisdiction under the Veterans Employment
Opportunities Act (“VEOA”) but sustained the initial
determination that Mr. Willingham was not entitled to
relief. Willingham v. Dep’t of the Navy, No. DC-3330-10-
0370-I-1, 118 M.S.P.R. 21 (M.S.P.B. Apr. 13, 2012) (“Final
Decision”). Because Mr. Willingham did not file a timely
appeal to this court, we must dismiss for lack of jurisdic-
tion.
D ISCUSSION
I.
Mr. Willingham is a former marine who, in response
to a vacancy announcement, applied for a position as an
Equal Employment Specialist at the Marine Corps Com-
munity Services (“MCCS”) facility at Camp LeJeune,
North Carolina. After Mr. Willingham had interviewed,
MCCS cancelled the vacancy announcement and reas-
signed a current employee to the position sought by Mr.
Willingham.
Before the Board, Mr. Willingham alleged that, by
cancelling the announcement and reassigning a current
employee to the position he sought and for which he
alleges he was the most qualified, MCCS violated his
rights under VEOA. The administrative judge deter-
mined that the Board did not have jurisdiction to hear
Mr. Willingham’s claim because the MCCS is a non-
appropriated fund instrumentality (“NAFI”). In addition,
the administrative judge determined that, in the event

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NATHANIEL WILLINGHAM v. NAVY 3
the Board found that it had jurisdiction, MCCS had not
violated VEOA.
On review, the Board modified the initial decision,
finding that it did, in fact, have jurisdiction over Mr.
Willingham’s claim. See Final Decision, 118 M.S.P.R. at
25–30. After finding jurisdiction, the Board affirmed the
initial determination that MCCS had not violated VEOA.
See id. at 30–31. This appeal followed.
II.
Before addressing the merits, an appeals court must
determine whether it has jurisdiction over the matters
appealed. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94-95 (1998); Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate
court has a special obligation to satisfy itself . . . of its own
jurisdiction . . . even though the parties are prepared to
concede it.”) (internal quotation marks and citations
omitted). Congress has limited this court’s review of final
decisions of the Board to those petitions “filed within 60
days after the Board issues notice of the final order or
decision of the Board.” See 5 U.S.C. § 7703(b)(1)(A).
Failure to comply with that statutory deadline prevents
jurisdiction in this court. See 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 prerequi-
site to our jurisdiction over this case.”); see also Monzo v.
Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)
(stating that the filing deadline under 5 U.S.C.
§ 7703(b)(1) is “statutory, mandatory [and] jurisdiction-
al”).
The Board issued the Final Decision on April 13,
2012. See Final Decision, 118 M.S.P.R. at 21. In that
decision, the Board provided a notice to Mr. Willingham
that this court “must receive [any] request for review no
later than 60 calendar days after your receipt of this
order” and that “[i]f you choose to file [an appeal], be very

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NATHANIEL WILLINGHAM v. NAVY 4
careful to file on time” because “[t]he court has held that
normally it does not have the authority to waive th[e]
statutory deadline and that filings that do not comply
with the deadline must be dismissed.” See Final Decision,
118 M.S.P.R. at 32. The notice further provided a citation
to 5 U.S.C. § 7703, as well as this court’s website and
“Guide for Pro Se Petitioners and Appellants.” See id.
The record shows that Mr. Willingham’s petition for
review to this court was dated June 12, 2012, but stamped
as received at the night box on June 18, 2012. In his
petition, Mr. Willingham states that he “received” the
Final Decision on April 18, 2012. The record also shows
that Mr. Willingham elected to be an e-filer, meaning that
he could file and receive case pleadings and other docu-
ments electronically.
The government asserts that because Mr. Willingham
electronically received the Final Decision on April 13,
2012, it was due 60 days later, on June 12, 2012. Accord-
ing to the government, receipt by this court on June 18,
2012, means that the petition was untimely, and should
be dismissed. Mr. Willingham responds that Federal
Circuit Rule 26(c) extends the deadline for his petition
from June 12 to June 15, 2012, the date he alleges he
actually placed his petition in the court’s night box.
We agree with the government. Under the Board’s
regulations, an e-filer is deemed to have received case
documents when served electronically—i.e., received via
e-mail. See 5 C.F.R. § 1201.14(m)(2) (“MSPB documents
served electronically on registered e-filers are deemed
received on the date of electronic submission.”). Thus, Mr.
Willingham’s electronic receipt of the Final Decision on
April 13, 2012, started the 60-day period under 5 U.S.C.
§ 7703(b)(1)(A)—a period that ended on June 12, 2012.
Even assuming that the clerk’s office received Mr.
Willingham’s petition on June 15, 2012, as he asserts, it
would still be untimely. Facing similar facts, this court

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NATHANIEL WILLINGHAM v. NAVY 5
has previously rejected the argument that Rule 26(c)
extends the date to file a petition for review. See Par-
tridge v. Dep’t of Defense, No. 99-3422, 1999 WL 1206981
(Fed. Cir. Nov. 24, 1999) (dismissing a petition for review
as untimely because Rule 26(c) does not provide a three-
day extension to the filing deadline set forth in
§ 7703(b)(1)). Further, the Federal Rules explicitly pro-
hibit this court from extending a deadline to file a petition
for review from an administrative agency, unless author-
ized by law. See Fed. R. App. P. 26(b)(2).
Because Mr. Willingham’s petition was filed after the
60-day period provided by statute, this court does not
possess jurisdiction to address the merits of his case. See
Howard v. Merit Sys. Prot. Bd., 392 F. App’x 857 (Fed.
Cir. 2010) (dismissing for lack of jurisdiction a petition
filed three days late by an e-filer); Oja, 405 F.3d at 1360;
see also Fed. R. App. P. 25(a)(2)(A) (noting that “filing is
not timely unless the clerk receives the papers within the
time fixed for filing”). We therefore must dismiss.
DISMISSED
COSTS
Each party shall bear its own costs.

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