Unpublished Dispositionarmond D. Smith, Plaintiff-appellant, v. Defense Logistic's Agency, Defendant-appellee, 816 F.2d 682 (6th Cir. 1987)

ORDER

This matter is before the Court on a pro se appeal from the dismissal of a complaint for review of two orders of the Merit systems Protection Board (hereinafter MSPB). This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.

This is the second complaint that the plaintiff has filed in the United States District Court for the Southern District of Ohio requesting review of these MSPB orders. The first case, No. C-2-83-0894, was dismissed by the district court, after a thorough examination of the issues, for lack of jurisdiction, untimeliness and failure to exhaust administrative remedies. The plaintiff did not appeal that judgment.

Approximately two months later, the plaintiff filed the complaint in the instant case. The defendant filed a motion to dismiss based upon res judicata. The plaintiff failed to respond. After waiting over four months, the district court dismissed the complaint pursuant to Local Rule 4.0.2., Southern District of Ohio, for failure to file a memorandum contra the motion.

Given the fact that the district court waited over four months before dismissing the complaint, the dismissal pursuant to Local Rule 4.0.2., Southern District of Ohio, was proper. Moreover, a petition to review a final order or decision of the MSPB must be filed in the United States Court of Appeals for the Federal Circuit, and not in a district court. See 5 U.S.C. § 7703(b) (1). Thus, the district court lacked subject matter jurisdiction. Therefore, the district court's judgment of dismissal is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.