Kelly Jo Lee v. Department of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KELLY JO LEE,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1885
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0432-14-0448-B-2.
______________________
PER C URIAM.
O R D E R
In response to this court’s June 22, 2023, order to show
cause, the Department of Veterans Affairs (“DVA”) urges
dismissal of this petition for review as untimely. Kelly Jo
Lee responds, asking this court to transfer this case to the
Equal Employment Opportunity Commission (“EEOC”).
Ms. Lee appealed her removal from the DVA to the
Merit Systems Protection Board. The administrative judge
assigned to the case issued an initial decision on November
29, 2022, affirming the agency’s action. That decision be-
came final on January 3, 2023, when Ms. Lee failed to file
Case: 23-1885 Document: 21 Page: 1 Filed: 10/25/2023

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LEE v. DVA 2
a timely petition for review at the Board. On May 10, 2023,
this court received Ms. Lee’s petition.
Under 5 U.S.C. § 7703(b)(1)(A), a petition for this
court’s review of a final decision by the Board must be filed
“within 60 days after the Board issues notice of the final
. . . decision.” This deadline is mandatory and jurisdic-
tional, and thus cannot be waived or equitably tolled. Fe-
dora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 (Fed. Cir.
2017). Here, the petition was received outside of that ju-
risdictional deadline. That Ms. Lee’s petition was dated
March 1, 2023, cannot save the petition because that stat-
ute “requires actual receipt by the court, not just timely
mailing.” Id.; see Fed. R. App. P. 25(a)(2)(A).
When this court lacks jurisdiction, we may, if in the in-
terest of justice, transfer an appeal to another court where
the case could have been brought. 28 U.S.C. § 1631. Ms.
Lee requests transfer to the EEOC, but that is not a court
identified in § 1631, which “includes the courts of appeals
and district courts of the United States.” 28 U.S.C.
§ 610. Nor do we see any basis for transfer to a United
States district court. Ms. Lee has not requested such
transfer, and while Ms. Lee’s papers here allege her re-
moval was retaliation for filing a grievance over denied
training requests, see, ECF No. 1-2 at 11, 15, she has not
alleged that grievance concerned a type of discrimination
covered under 5 U.S.C. § 7702. In fact, Ms. Lee
has checked the box on her Statement Concerning Discrim-
ination that she did not argue that her removal was at-
tributable to discrimination on the basis of race, color,
religion, sex, age, national origin or retaliation for pursuing
Equal Employment Opportunity activity. ECF No. 6 at 1.
Accordingly,
IT IS O RDERED THAT:
(1) The case is dismissed for lack of jurisdiction.
Case: 23-1885 Document: 21 Page: 2 Filed: 10/25/2023

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LEE v. DVA 3
(2) Each side shall bear its own costs.
October 25, 2023
Date
FOR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1885 Document: 21 Page: 3 Filed: 10/25/2023

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