Linda C. SMITH, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent, 206 F. App'x 979

ORDER Petitioner contends that she was involuntarily placed on leave without pay status for more than 14 days, thus giving the Board jurisdiction over her alleged constructive suspension. The administrative judge assigned to her case concluded that the Board lacked jurisdiction over the case, and the full Board declined review of the administrative judge’s decision. On petition for review to this court, petitioner contends that the board erred in dismissing the case for want of jurisdiction. She requests that we remand the case for a hearing on the merits of her case, and other relief which we deny.

The government agrees that the ground invoked by the administrative judge for dismissing the appeal as wrong and asks this court to remand the case to the Board for further proceedings. The defendant agency notes that in addition to the merits of the case, there is an issue of whether the petitioner timely filed her appeal to the Board. The Board, not a party to the appeal, declined our invitation to submit its views on the jurisdictional issue that the parties have addressed. The final decision of the Board dismissing the case for want of jurisdiction is hereby vacated.

The case is remanded to the Board for such further proceedings as are appropriate. Accordingly, oral argument in this appeal scheduled for November 6, 2006, is cancelled. SO ORDERED.