Case: 13-1127    Document: 9     Page: 1   Filed: 04/11/2013




          NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

                  DAVID L. GIST, SR.,
                   Plaintiff-Appellant,

                            v.
                   UNITED STATES,
                   Defendant-Appellee.
                __________________________

                        2013-1127
                __________________________

   Appeal from the United States District Court for the
Northern District of New York in case no. 09-CV-1361,
Senior Judge Neal P. McCurn.

                __________________________

   Before PROST, MOORE and O’MALLEY, Circuit Judges.
PER CURIAM.

                       ORDER

    The court considers whether this appeal should be
dismissed or transferred to the United States Court of
Appeals for the Second Circuit. The United States indi-
cates that dismissal is appropriate. David L. Gist, Sr.
appears to indicate that transfer is appropriate.
Case: 13-1127      Document: 9      Page: 2     Filed: 04/11/2013




DAVID GIST V. US                                                2


    Gist appeals from a judgment of the United States
District Court for the Northern District of New York
which dismissed for lack of subject matter jurisdiction his
complaint of medical malpractice against a Department of
Veterans Affairs medical facility.

    Gist filed his notice of appeal in November 2012, more
than eleven months after the district court entered judg-
ment. When the United States is a party, the notice of
appeal from a district court decision must be filed within
60 days of entry of judgment or order appealed from. Fed.
R. App. P. 4(a)(1)(B). The statutory deadline for taking an
appeal to this court is jurisdictional, mandatory, and
cannot be waived. See Bowles v. Russell, 551 U.S. 205, 214
(2007). Gist’s notice of appeal is untimely.

    This court is a court of limited jurisdiction, which does
not include jurisdiction in this matter. 28 U.S.C. § 1295.
Pursuant to 28 U.S.C. § 1631, when an appeal is filed in a
court that determines that it lacks jurisdiction, “the court
shall if it is in the interest of justice, transfer such action or
appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed.” However, since Gist’s appeal is untimely, a
transfer would not be in the interest of justice and instead
dismissal is warranted.

    Accordingly,

    IT IS ORDERED THAT:

    (1) The appeal is dismissed.
    (2) All other motions are denied as moot.
    (3) Each side shall bear its own costs.
Case: 13-1127   Document: 9   Page: 3    Filed: 04/11/2013




3                                         DAVID GIST V. US




                              FOR THE COURT


                              /s/ Jan Horbaly
                              Jan Horbaly
                              Clerk

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