Smith v. Department of the Army

This case is before the court on respondent’s motion to dismiss petitioner’s appeal of a final decision of the Merit Systems Protection Board. After careful consideration of the parties’ submissions and without oral argument, we deny the respondent’s motion.

Petitioner, William C. Smith, was employed at the United States Army Commissary at Fort Myer, Virginia. He was removed from his position by letter of October 3,1980, from the Commissary Officer for theft of commissary property. Petitioner filed a timely appeal of his removal with the Merit Systems Protection Board (MSPB). The MSPB upheld his removal in a decision dated February 17, 1981, and received by petitioner on February 20, 1981. No appeal was filed with the MSPB so the decision of the MSPB became final on March 24,1981.

A final decision of the MSPB is subject to review in this court if a petition is "filed within 30 days after the date the petitioner received notice of the final order or decision of *732the board.” 5 U.S.C. § 7703(b)(1) (Supp. II 1978). Respondent contends petitioner filed his petition in this court on April 24, 1981, one day late. We find petitioner filed his petition in a timely manner on April 23, 1981. He therefore meets the 30-day filing requirement of 5 U.S.C. § 7703(b)(1). Although petitioner’s petition was originally stamped April 24, 1981, this was found to be an error and his petition was corrected to reflect the correct filing date of April 23, 1981. Respondent was informed of this at the time the error was corrected and should have withdrawn its motion at that time.

it is therefore ordered that respondent’s motion to dismiss be and is hereby denied.