Denise P. Thomas v. Merit Systems Protection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3094
DENISE P. THOMAS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: October 10, 2006
__________________________
Before MAYER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.
PER CURIAM.
Denise P. Thomas appeals from a final decision of the Merit Systems Protection
Board, which dismissed as untimely her appeal of the Office of Personnel
Management’s (“OPM”) disallowance of her application for disability retirement.
Thomas v. Office of Pers. Mgmt., MSPB Docket No. CH844E050583-I-1 (Oct. 7, 2005).
We reverse and remand.

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On March 14, 2005, OPM issued a reconsideration decision affirming its previous
denial of Thomas’ application for disability retirement. Thomas received OPM’s final
decision via certified mail on March 28, 2005, and she appealed to the board in a filing
that was postmarked April 26, 2005. The administrative judge dismissed her appeal as
untimely, and Thomas filed a petition for review with the full board on July 7, 2005. The
board denied her petition, and Thomas appeals.
We review a decision of the board to determine whether it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” or
“unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Here, both parties agree
that the board’s decision to dismiss Thomas’ appeal as untimely was not supported by
substantial evidence and not in accordance with the law. Thomas had 30 days from the
date on which she received the OPM’s final decision, i.e., March 28, 2005, to file her
appeal. 5 C.F.R. § 1201.22(b)(1). Both the record and the administrative judge agree
that the appeal was filed on April 26, 2005, which was clearly within 30 days from the
date on which she received OPM’s final decision. The administrative judge, however,
incorrectly calculated the filing deadline by using the date on which the decision was
issued rather than the date on which Thomas received the decision via certified mail.
Therefore, her decision to dismiss Thomas’ appeal as untimely was neither supported
by substantial evidence nor in accordance with law. Accordingly, the decision of the
Merit Systems Protection Board is reversed and the case is remanded for further
proceedings.
06-3094 2

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