              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.
      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.




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