608 F.2d 122 (5th Cir. 1979), 79-2328, Motley v. Secretary of United States Dept. of Army

Docket Nº:79-2328.
Citation:608 F.2d 122
Party Name:Gary D. MOTLEY, Petitioner, v. SECRETARY OF the UNITED STATES DEPARTMENT OF the ARMY and the United States Merit Systems Protection Board, Respondents.
Case Date:December 10, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 122

608 F.2d 122 (5th Cir. 1979)

Gary D. MOTLEY, Petitioner,

v.

SECRETARY OF the UNITED STATES DEPARTMENT OF the ARMY and

the United States Merit Systems Protection Board,

Respondents.

No. 79-2328.

United States Court of Appeals, Fifth Circuit

December 10, 1979

James E. Davis, Texarkana, Ark., for petitioner.

Charles K. Tinkler, Chief Appeals Officer, Merit Systems Protection Board, Edward L. Self, Asst. Appeals Officer, William Kanter, Appellate Staff, Civil Div., Dept. of Justice, Washington, D. C., for respondents.

Petition for Review of An Order of the Merit Systems Protection Board.

Before GODBOLD, RONEY and VANCE, Circuit Judges.

PER CURIAM:

In this federal employee personnel case Gary Motley seeks review in this Court of a Merit Systems Protection Board 1 decision affirming the discharge of Motley from his job at the Red River Army Depot in Texarkana, Texas. The Government's motion to dismiss Motley's petition for review is granted because under the savings provisions of the Civil Service Reform Act of October 13, 1978, Pub.L.No. 95-454, § 902, 47 U.S.L.W. 45, 79-80 (Nov. 28, 1978), this Court lacks jurisdiction to review directly the agency's decision.

The Department of the Army discharged Motley in October 1978. Motley appealed the discharge to the Civil Service Commission, the precursor agency to the Merit Systems Protection Board. The decision affirming the agency's discharge of Motley was issued by the Merit Systems Protection Board in February 1979. Motley's petition for review in this Court followed.

Under the Act "(a)ny employee or applicant for employment adversely affected or aggrieved by a final order or decision of the

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Merit Systems Protection Board may obtain judicial review of the order or decision." 5 U.S.C.A. § 7703(a) (1). Additionally, the Act provides, "a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States court of appeals . . . ." 5 U.S.C.A. § 7703(b)(1). By express provision, however, the Act does not apply to any proceeding pending on January 11, 1979, the effective date of the Act. Pub.L.No. 95-454, §§ 902, 907, 47 U.S.L.W. 79-81.

The savings clause which governs cases pending on the effective date of the Act provides,

SAVINGS PROVISIONS

Sec. 902. (a) Except as otherwise provided in this Act, all...

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