UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


TESFAYE, FASIL

v.

CARR PARK INC


00-7078a

D.C. Cir. 2000


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: Pursuant to 28 U.S.C. s 1292(b) (1994), de- fendant
petitions for leave to appeal an order of the district  court denying
defendant's motion to dismiss plaintiff's Title  VII claim.
Defendant's petition was untimely, therefore we  dismiss for lack of


I.


Plaintiff, Fasil Tesfaye, was employed by defendant, Carr  Park, Inc.,
as a facilities manager. On November 12, 1998,  Carr Park fired
Tesfaye. Subsequently, Tesfaye filed a  charge with the EEOC, on April
20, 1999, claiming that Carr  Park had discriminatorily fired him
based on his race and  national origin in violation of Title VII, 42
U.S.C. s 2000e et  seq. On June 28, 1999, sixty-nine days after
Tesfaye filed his  charge, the EEOC issued to him a right to sue
letter and a  document entitled "dismissal and notice of rights." The 
EEOC stated that it was dismissing the charge and terminat- ing its
investigation because it was "unable to conclude that  the information
obtained establishes violations of the stat- utes." The notice
informed Tesfaye that he had 90 days in  which to file his claim in
district court. Tesfaye then filed  suit in federal district court on


Carr Park moved to dismiss the claim because Tesfaye had  not waited
180 days after filing his charge with the EEOC  before bringing suit
in federal court. Section 2000e-5(f)(1)  specifically states that a
charging party may file suit if the  charge is "dismissed by the
Commission, or if within one  hundred and eighty days from the filing
... the Commission  has not filed a civil action." 42 U.S.C. s
2000e-5(f)(1) (1994)  (emphasis added). Carr Park argues that
notwithstanding  the statutory language, our opinion in Martini v.
Federal  National Mortgage Ass'n, 178 F.3d 1336, 1347 (D.C. Cir. 
1999), held that the 180-day requirement is uniform even if  the
Commission has dismissed the charge earlier. The dis- trict judge,
however, read Martini in harmony with the  statutory wording,1 but




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n 1 Martini struck down an EEOC regulation asserting authority to 
authorize a private party to sue before 180 days even if a charge  had
not been dismissed. Id.


our opinion could be seen as in tension with the plain wording  of the
statute, certified the order for interlocutory appeal  under 28 U.S.C.
s 1292(b). He thought that the correct  application of Martini was a
controlling question as to which  there was substantial ground for
difference of opinion and  that immediate appeal of the issue might
materially advance  the termination of the litigation.


Subsequently, Carr Park filed a petition for permission to  appeal,
pursuant to 28 U.S.C. s 1292(b), on February 16,  2000. Carr Park
conceded that it filed the requisite petition  outside of the 10-day
statutory filing period. But it moved  for leave to file the untimely
petition, arguing excusable  neglect because counsel did not have an
opportunity to review  the district court's order until he returned
from an out-of- town trial on February 14, the date the petition was
due.  And, Carr Park argued, any prejudice to Tesfaye would be de 
minimis because the petition was filed only two days late.  Tesfaye
opposed neither Carr Park's motion nor its petition  for leave to file
an interlocutory appeal. The court referred  the motion to the merits
panel and directed the parties to  include in their briefs arguments
concerning the timeliness of  the petition for permission to appeal.


II.


Although both parties ask us to excuse the untimeliness of  the
petition, this issue calls into question our jurisdiction and  we must
address it. See Beckett v. Air Line Pilots Ass'n, 59  F.3d 1276, 1278
n.2 (D.C. Cir. 1995); see also City of New  Orleans v. SEC, 137 F.3d
638, 639 (D.C. Cir. 1998).


Federal Rule of Appellate Procedure 5(a)(2) states that a  petition for
permission to appeal "must be filed within the  time specified by the
statute" authorizing the appeal. In this  case, interlocutory appeal
of a certified order is permitted  under 28 U.S.C. s 1292(b), and that
statute provides that the  court of appeals may "in its discretion,
permit an appeal to be  taken from such order, if application is made
to it within ten  days after the entry of the order." 29 U.S.C. s
1292(b)  (emphasis added). Although we have yet to decide the 


question, all of the circuits to address the issue have conclud- ed
that section 1292(b)'s 10-day filing period is jurisdictional.  See
Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989) (listing  cases);
see also 16 Charles A. Wright, Arthur R. Miller, &  Edward H. Cooper,
Federal Practice and Procedure s 3929,  at 376 & n.39 (2d ed. 1996)
(stating that no appeal may be  taken if petition for permission to
appeal is filed outside of  the 10-day period specified in the
statute).2 We agree that  section 1292(b)'s filing period is
jurisdictional. Failure to file  the petition for permission to appeal
within the 10-day period  provided by the statute deprives us of
jurisdiction over the  appeal.


Carr Park asks us to find excusable neglect and permit the  untimely
petition. We are without authority to do so: no  exception to the time
for filing is set out in the statute and  the plain language of the
Federal Rules precludes us from  enlarging the statutory time for
filing a petition for permis- sion to appeal. The language of Rule 5
is mandatory. See  Fed. R. App. P. 5(a)(2). And although Federal Rule
of  Appellate Procedure 26(b)(1) states that a court for good  cause
may extend the time prescribed by the rules, the rule  expressly
states that the court may not extend time for the  filing of a
petition for permission to appeal. Fed. R. App. P.  26(b)(1); see also
Myles, 881 F.2d at 126; Aparicio v. Swan  Lake, 643 F.2d 1109, 1111
(5th Cir. 1981); cf. National Black  Media Coalition v. FCC, 760 F.2d
1297, 1299 (D.C. Cir. 1985)  (dismissing untimely petition to appeal
agency decision be- cause statute makes no exception for excusable
failure and  Fed. R. App. P. 26(b)(2) explicitly prohibits court from
enlarg- ing time for filing a notice of appeal from an agency


Accordingly, we deny Carr Park's motion for leave to file a  petition
for permission to appeal pursuant to 28 U.S.C. 




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n 2 See, e.g., Tranello v. Frey, 962 F.2d 244, 248 (2d Cir. 1992); 
Rodriguez v. Banco Central, 917 F.2d 664, 668-69 (1st Cir. 1990);  In
re Benny, 791 F.2d 712, 719-20 (9th Cir. 1986); Local P-171, 
Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d  1065, 1068
(7th Cir. 1981).


s 1292(b) and dismiss Carr Park's petition for permission to  appeal.


So ordered.