De Melo v. Department of Veterans Affairs

112 F. App'x 31

• Court: Court of Appeals for the Federal Circuit
• Decided: October 13, 2004
• Docket: No. 04-3441
• Status: Published

Opinion

ORDER

CLEVENGER, Circuit Judge.

Upon review of this recently docketed petition for review, we consider whether it should be dismissed for lack of jurisdiction.

Joseph F. De Melo petitions this court for review of a decision of the United States Department of Labor’s Administrative Review Board. The Board dismissed De Melo’s complaint for lack of jurisdiction on June 22, 2004.

This court does not have jurisdiction to review the Board’s decision. This court’s jurisdiction is primarily prescribed by 28 , which does not include jurisdiction to review a decision of the Board. In his petition, De Melo asserts that we have jurisdiction pursuant to 42 U.S.C. § 5851. That statute provides for review of a decision of the Secretary “in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred.” Because our court is not a regional circuit court of appeals, clearly we do not have jurisdiction under that statute.

Additionally, we note that De Melo’s petition for review was not timely filed under 42 U.S.C. § 5851. That statute requires that any petition for review be filed “within sixty days from the issuance of the Secretary’s order.” Here, the petition for review was received by this court on the 77th day after issuance of the order. Because the petition was not timely filed, we need not transfer this petition to a regional circuit court of appeals. See 28 U.S.C. § 1631 (court may transfer an action to a court “in which the action or appeal could have been brought at the time it was filed or noticed”).

Accordingly,

IT IS ORDERED THAT:

This appeal is dismissed for lack of jurisdiction.