                        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this opinion should not be published and is not precedent except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.




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