Victor M. Casillas v. Department of Veterans Affairs

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR M. CASILLAS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2022-2264
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-22-0164-W-1.
______________________
ON MOTION
______________________
Before T ARANTO, MAYER , and STOLL , Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s December 8, 2022, order to
show cause, the Department of Veterans Affairs urges dis-
missal. Victor M. Casillas urges transfer to a district court
and separately moves for leave to proceed in forma pau-
peris. For the reasons stated below, we dismiss.
Case: 22-2264 Document: 13 Page: 1 Filed: 02/16/2023

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CASILLAS v. DVA 2
Mr. Casillas filed an appeal at the Merit Systems Pro-
tection Board challenging his removal from the Depart-
ment of Veterans Affairs. On February 24, 2022, the
administrative judge assigned to the matter granted Mr.
Casillas’s request to withdraw the appeal. It is undisputed
that Mr. Casillas did not file a petition seeking review of
that decision at the Board and therefore the initial decision
became the final decision of the Board on March 31, 2022.
Mr. Casillas filed his petition with this court on September
19, 2022.
The timely filing of a petition from a Board decision is
a jurisdictional requirement “and not subject to equitable
tolling.” Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016
(Fed. Cir. 2017). A petition from a final decision “shall be
filed within 60 days after the Board issues notice of the fi-
nal order or decision of the Board.” 5 U.S.C.
§ 7703(b)(1)(A). Here, Mr. Casillas does not dispute that
he filed his petition for review far outside of this statutory
deadline. We therefore lack jurisdiction over this appeal,
as this court can only consider whether the petition was
timely filed and cannot excuse a failure to timely file based
on individual circumstances. Cf. Fed. R. App. P. 26(b)(2)
(prohibiting the court from extending or reopening the time
to petition for review “unless specifically authorized by
law”).
We see no basis to transfer this case to federal district
court, as Mr. Casillas requests. It is true that, where the
petitioner complains of an adverse personnel action appeal-
able to the Board and alleges that a basis for the action was
a listed type of discrimination, the appropriate forum is
district court. 5 U.S.C. § 7703(b)(2); Perry v. Merit Sys.
Prot. Bd., 137 S. Ct. 1975, 1985 (2017). But it does not ap-
pear that Mr. Casillas brought such a mixed case at the
Board. And even if he had, Mr. Casillas has not shown that
he has been adversely affected by the Board’s decision
granting his own request to withdraw this appeal, such
that he would be entitled to judicial review. See 5 U.S.C.
Case: 22-2264 Document: 13 Page: 2 Filed: 02/16/2023

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CASILLAS v. DVA 3
§ 7703(a)(1) (providing only that “[a]ny employee . . . ad-
versely affected or aggrieved by a final order or decision of
the . . . Board may obtain judicial review” (emphasis
added)). Under such circumstances, transfer under 28
U.S.C. § 1631 is not appropriate.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed, and all pend-
ing motions are denied as moot.
(2) Each side shall bear its own costs.
February 16, 2023
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 22-2264 Document: 13 Page: 3 Filed: 02/16/2023

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