Duncan v. Henderson

MEMORANDUM ^**

Donald W. Duncan appeals pro se the district court’s order dismissing his action under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and for lack of timeliness. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s Fed.R.Civ.P. 12(b)(1) dismissal, see Brady v. United States, 211 F.3d 499, 502 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000), and affirm.

Because Merit Systems Protection Board cases that do not raise discrimination claims must be appealed to the United States Court of Appeals for the Federal Circuit, see Hays v. Postmaster Gen. of the United States, 868 F.2d 328, 330 (9th Cir.1989), the district court correctly concluded that it lacked subject matter jurisdiction over Duncan’s action. In addition, because Duncan failed to file a timely complaint, the district court correctly concluded that it lacked jurisdiction. See 5 U.S.C. § 7703(b)(1).

All remaining contentions lack merit. All pending motions are denied as moot.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.