Zervas v. United States ( 1996 )

USCA1 Opinion

          July 23, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1199



                                   JOHN T. ZERVAS,



                                Plaintiff, Appellant,



                                          v.



                          UNITED STATES OF AMERICA, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Lynch, Circuit Judges.
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            John T. Zervas on brief pro se.
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            Donald  K. Stern,  United States  Attorney, and Sara  Miron Bloom,
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        Assistant United States Attorney, on brief for appellees.





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                 Per Curiam.  The  district court dismissed the complaint
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            in this case, apparently both for lack of merit  and for want



            of jurisdiction.



                 If Zervas'  complaint is  construed as  a claim  to have



            suffered  age discrimination,  the complaint was  time barred



            since  it  was filed  more than  180  days after  the alleged



            discriminatory act.   See Castro  v. United States,  775 F.2d
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            399,   403  (1st   Cir.   1985)  ("[I]n   lieu  of   pursuing



            administrative  relief,  [a  federal  employee  claiming  age



            discrimination]  may  proceed  directly to  federal  district



            court .  .  .  no  later  than  180  days  from  the  alleged



            discriminatory act."); 29 U.S.C.   633a(d).  If the complaint



            is  construed as  an  appeal of  the  decision by  the  Merit



            Systems Protection  Board denying  Zervas' claim to  have his



            sick leave  reinstated, the  complaint was not  only untimely



            but also filed  in the wrong  court.  5  U.S.C.    7703(b)(1)



            (appeal of final order of Board "shall be filed in the United



            States Court of Appeals for the Federal  Circuit . . . within



            30  days after  the petitioner  received notice of  the final



            order of decision of the Board").



                 Since abiding by a limitation period is a jurisdictional



            prerequisite  to  actions  against  the  federal  government,



            Lavery v. Marsh, 918 F.2d 1022, 1027 n.7 (1st Cir. 1990), the
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            district court  lacked  jurisdiction to  hear the  complaint,



            however construed.



                 Affirmed.
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