
    John ELIZONDO, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.
    No. 05-3071.
    United States Court of Appeals, Federal Circuit.
    May 2, 2005.
    Before LOURIE, GAJARSA, and LINN, Circuit Judges.
   ORDER

LOURIE, Circuit Judge.

The court considers whether this case should be re-transferred to the United States District Court for the Southern District of California. John Elizondo and the Department of the Navy both agree that re-transfer is appropriate.

The district court transferred part of this case to us pursuant to 28 U.S.C. § 1631. Elizondo v. Secretary of the Department of the Navy, 02cvl063-BEB (BLM) (November 29, 2004). However, a § 1631 transfer may only be employed if the action could have been brought in the transferee court at the time it was filed in the transferring court. All agree that to be timely in this court, the complaint had to have been filed no later than December 21, 2001 in the district court, that is, within 60 days of receipt of the final Merit Systems Protection Board decision. See 5 USC § 7703(b)(1). The complaint was filed on May 30, 2002. Thus, we lack jurisdiction and re-transfer is appropriate.

Accordingly,

IT IS ORDERED THAT:

The case is re-transferred to the United States District Court for the Southern District of California.  