UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-60459
Summary Calendar
_______________________
JAMES H. DALLAS, SR.,
Plaintiff-Appellant,
versus
MARVIN T. RUNYON, JR., United
States Postmaster General,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(98-CV-1119)
_________________________________________________________________
January 5, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this appeal, James Dallas contests the district
court’s grant of summary judgment to Marvin T. Runyon, Postmaster
General of the United States, and its refusal to transfer the case
to the Federal Circuit. Because the district court acted
correctly, this Court affirms.
Dallas was terminated from his employment with the United
States Postal Service on April 29, 1995 for unsatisfactory
performance and failure to follow supervisory instructions.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Plaintiff appealed this decision to the Merit Systems Protection
Board (MSPB), asserting that his removal was due to discriminaiton
on the basis of race, age and disability. An administrative judge
found against the plaintiff, and the full MSPB denied plaintiff’s
petition for review. After the plaintiff petitioned the EEOC for
review of the MSPB decision, the EEOC issued a decision on March
11, 1997 concurring with the MSPB. On April 16, 1997, plaintiff
filed his first judicial complaint, which was dismissed on August
31, 1998 for ineffective service of process.1
In the meantime, on May 7, 1996, Dallas asked the Postal
Service to reinstate him. When the Postal Service denied this
request, plaintiff appealed to the MSPB, and an administrative
judge concluded that plaintiff was not entitled to restoration. On
July 14, 1997, the full MSPB denied plaintiff’s subsequent petition
for review. The plaintiff filed a petition for review with the
EEOC on August 16, 1997. On January 5, 1998, the EEOC denied his
petition for review. Plaintiff then filed his complaint in this
case on February 9, 1998. On May 20, 1999, the district court
found that it lacked subject matter jurisdiction over the case and
granted summary judgment for the defendants. The district court
also declined to transfer the case to the Federal Circuit.
Because this court concurs with the reasoning in the
district court’s opinion regarding its lack of subject matter
1
The district court went on to find that the plaintiff was not
“disabled,” as defined by the Rehabilitation Act of 1973, at the
time of his termination. See Dallas v. Runyon, NO. 3:97cv269BN
(August 31, 1998).
2
jurisdiction, we affirm its grant of summary judgment to the
defenants.
For reasons different than those urged by the goverment
or relied upon by the district court, this Court also declines to
transfer the case to the Federal Circuit. At the time of this
Board decision, 5 U.S.C. §7703(b)(1) stated that: “any petition for
review [to the Federal Circuit] must be filed within 30 days after
the date the petitioner received notice of the final order or
decision of the Board.”2 Furthermore, 28 U.S.C. §1631 states that
if a court finds a lack of jurisdiction, “the court shall, if it is
in the interest of justice, transfer such action ... to any other
such court in which the action ... could have been brought at the
time it was filed.”
The plaintiff had clearly received notice of the final
decision of the Board at the time he filed his petition for review
with the EEOC on August 16, 1997. Even assuming Dallas did not
receive notice of the Board’s final decision until the day before
he filed his petition for review with the EEOC, under 5 U.S.C.
§7703(b)(1) he was required to file his petition for review by the
Federal Circuit by September 15, 1997. Dallas filed his action in
the district court on February 9, 1998, almost five months later.
Therefore, since the action could not have been brought in the
Federal Circuit at the time it was filed with the district court
below, the case should not be transferred under 28 U.S.C. §1631.
2
5 U.S.C. §7703(b)(1) was amended in 1998 to provide a 60 day
period to file a petition for review after receipt of a final Board
order or decision.
3
AFFIRMED.
4
Dallas v. Henderson
Combined Opinion