United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2001 Decided January 30, 2001
No. 99-1433
Slinger Drainage, Inc.,
Petitioner
v.
Environmental Protection Agency,
Respondent
On Petition for Review of Orders of the
Environmental Protection Agency
Gary R. Leistico argued the cause and filed the briefs for
petitioner.
Scott J. Jordan, Attorney, United States Department of
Justice, argued the cause for respondent. With him on the
brief was Lois J. Schiffer, Assistant Attorney General.
Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Slinger Drainage Inc. ("Slinger")
seeks review of a final decision of the Environmental Protec-
tion Agency's ("EPA's") Environmental Appeals Board.
Slinger is in the business of installing drainage tile, and in
this capacity used a Hoes Trenching Machine to install 26,000
linear feet of drainage tile over a 50-acre area. As a result,
the EPA filed an administrative complaint against Slinger
alleging that Slinger violated s 301(a) of the Clean Water
Act, 33 U.S.C. s 1311(a) (1994), by failing to secure a permit
before discharging pollutant into wetland as required under
s 404 of the Clean Water Act, 33 U.S.C. s 1344. The Admin-
istrative Law Judge found Slinger liable as alleged and
assessed a Class II civil penalty of $90,000; the Appeals
Board affirmed both the finding of liability and the penalty.
In re: Slinger Drainage, Inc., CWA Appeal No. 98-10 (Sept.
29, 1999), reprinted in Joint Appendix 39. Whatever the
substance of Slinger's claims, this court has no jurisdiction to
reach the merits in this case, because Slinger's notice of
appeal was untimely.
In the case of an assessment of a Class II civil penalty, a
party may obtain judicial review "by filing a notice of appeal
in such court within the 30-day period beginning on the date
the civil penalty order is issued." 33 U.S.C. s 1319(g)(8)(B).
The Supreme Court has explained that "[j]udicial review
provisions ... are jurisdictional in nature and must be con-
strued with strict fidelity to their terms.... This is all the
more true of statutory provisions specifying the timing of
review, for those time limits are, as we have often stated,
'mandatory and jurisdictional,' ... and are not subject to
equitable tolling." Stone v. Immigration and Naturalization
Serv., 514 U.S. 386, 405 (1995) (quoting Missouri v. Jenkins,
495 U.S. 33, 45 (1990)). Under 33 U.S.C. s 1319(g)(8)(B),
Slinger had 30 days to file its notice of appeal beginning on
the date the order issued. As a statutory provision defining
the timing of review within a judicial review provision, this
30-day period is jurisdictional.
The parties disagree on when the Appeals Board issued its
order. Slinger asserts that the order issued on Thursday,
September 30, 1999; the EPA argues that the order issued
on Wednesday, September 29, 1999. For the purpose of
assessing our jurisdiction, we assume, without deciding, that
Slinger is correct and the order issued on Thursday, Septem-
ber 30, 1999. Even accepting this assumption, however,
Slinger's notice of appeal was not timely.
33 U.S.C. s 1319(g)(8)(B) specifies that the period for filing
a notice of appeal runs for 30 days beginning on the day the
order issues. This provision does not, however, indicate any
rules regarding the treatment of weekend days, holidays, or
other potential exceptions. As a result, we look to Federal
Rule of Appellate Procedure 26(a), which provides that Satur-
days and Sundays are counted within the filing period, unless
the last day of the period falls on a Saturday or Sunday. In
particular, Rule 26(a) directs that we "[i]nclude the last day of
the period unless it is a Saturday, Sunday [or] legal holiday."
Under this provision, the court must include intermediate
Saturdays and Sundays in computing the 30-day period.
Thus, starting with the date Slinger asserts the order issued,
Thursday, September 30, 1999, the 30-day period ended on
Friday, October 29, 1999. Slinger filed its notice of appeal to
this court on Monday, November 1, 1999--outside the legal
time for filing its notice of appeal.
At oral argument Slinger asserted that Rule 26(a) governs
how the 30-day period is computed. Were this the case, we
would "[e]xclude the day of the act, event, or default that
begins the period." Fed. R. App. P. 26(a). Thus, under Rule
26(a), we would not include the day the order issued, which
would mean that the 30th calendar day fell on Saturday,
October 30, 1999. Under this calculation, the 30th day for
filing a notice of appeal would have been Monday, November
1, 1999, the day that Slinger filed.
Rule 26(a), however, does not apply when Congress has
specified a particular method of counting in the statute itself
and there is no indication of a contrary congressional inten-
tion. This was evident in United Mine Workers of America
v. Dole, 870 F.2d 662, 665 (D.C. Cir. 1989), where the court
found that Rule 26(a) applied to the requirement in the Mine
Act, 30 U.S.C. s 811(d) (1994), that a petition challenging a
new standard be filed "prior to the sixtieth day after such
standard is promulgated." The court explained that, because
the cited statute made "no separate provision for the compu-
tation of time," "Congress intended its time periods to be
computed in accordance with the federal rule." United Mine
Workers, 870 F.2d at 665. The court also noted the "continu-
ing vitality" of the Supreme Court's reasoning in Union
National Bank v. Lamb, 337 U.S. 38, 40-41(1949), namely,
"that the federal rules of procedure can be relied on for
interpreting a statutory time period in the absence of any
more statute-specific provisions or indication that Congress
did not intend the rules to apply." United Mine Workers,
870 F.2d at 665 n.2.
In this case, in contrast, the statute currently before us
clearly establishes a separate provision for the computation of
time: a person may obtain review by filing "within the 30-day
period beginning on the date the civil penalty issued." 33
U.S.C. s 1319(g)(8)(B) (emphasis added). And there is noth-
ing to suggest that Congress did not intend precisely what it
said in the statute. As a result, Slinger's notice of appeal was
not timely, and this court has no authority to hear the merits
of its claim. We dismiss the appeal for lack of jurisdiction.