229 F.3d 1192 (D.C. Cir. 2000)
Carr Park, Inc.,Defendant-Petitionerv.Fasil Tesfaye, Plaintiff-Respondent
No. 00-7078
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2000Decided October 31, 2000

On Petition for Permission to File anInterlocutory Appeal(99cv02561)
M. Carter DeLorme argued the cause for petitioner.  With  him on the briefs was William G. Miossi.
William Payne argued the cause and filed the briefs for  resondent.
Before:  Edwards, Chief Judge, Silberman and Garland,  Circuit Judges.
Opinion for the Court filed Per Curiam.

Per Curiam:

1
Pursuant to 28 U.S.C. § 1292(b) (1994), defendant 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 jurisdiction.

I.

2
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. § 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 terminating its investigation because it was "unable to conclude that  the information obtained establishes violations of the statutes."  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 September 27, 1999.


3
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. § 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 district judge, however, read Martini in harmony with the  statutory wording,1 but recognizing that certain language in our opinion could be seen as intension with the plain wording  of the statute, certified the order for interlocutory appeal  under 28 U.S.C. § 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.


4
Subsequently, Carr Park filed a petition for permission to  appeal, pursuant to 28 U.S.C. § 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.

5
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).


6
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. § 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. § 1292(b)  (emphasis added).  Although we have yet to decide the question, all of the circuits to address the issue have concluded 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 § 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.


7
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 permission 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 because statute makes no exception for excusable failure and  Fed. R. App. P. 26(b)(2) explicitly prohibits court from enlarging time for filing a notice of appeal from an agency order).


8
Accordingly, we deny Carr Park's motion for leave to file a  petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) and dismiss Carr Park's petition for permission to  appeal.


9
So ordered.



Notes:


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.


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).


