Opinion
No. 82-5516.
September 28, 1984.
Maria Sperando, Asst. U.S. Atty., Miami, Fla., for respondents.
Petition for Review of an Order of the Merit Systems Protection Board.
Before TJOFLAT, FAY and JOHNSON, Circuit Judges.
On September 29, 1983, this panel granted petitioner's petition for rehearing, vacated our November 10, 1982 order for dismissal for lack of jurisdiction, and transferred this matter to the United States Court of Appeals for the Federal Circuit, based on our interpretation of the Federal Courts Improvement Act (FCIA), Pub.L. 97-164 § 403, Apr. 2, 1982 (effective Oct. 1, 1982), set out as a note under 28 U.S.C.A. § 171 (West Supp. 1983). On April 30, 1984, the United States Court of Appeals for the Federal Circuit entered an order vacating its own April 16, 1984 order dismissing petitioner's appeal, and transferring the case back to the United States Court of Appeals for the Eleventh Circuit. That court's mandate issued on July 16, 1984. The Federal Circuit concluded that the Federal Courts Improvement Act (FCIA) has no provision for the transfer to the Federal Circuit of cases pending in other circuit courts of appeals as of October 1, 1982, the date of the Federal Circuit's creation. Based upon the position taken by another panel of this court, Boylan v. United States Postal Service, 704 F.2d 573, 574 n. 1 (11th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1916, 80 L.Ed.2d 464 (1984), we hold that jurisdiction over this case lies with us because petitioner's notice of appeal was filed and was pending in this court before October 1, 1982. Thus, we again address the question whether petitioner's petition should be dismissed for lack of jurisdiction.
In light of the conclusions of another panel of this court in McCard v. Merit Systems Protection Board, 702 F.2d 978 (11th Cir. 1983), finding limited judicial review appropriate in certain disability retirement cases under 5 U.S.C. § 8347(c), we answer that question in the negative and direct that this appeal proceed forward on its merits. We intimate no opinion as to whether appellant presents a claim subject to the narrow review accorded under McCard.