620 F.2d 217 (10th Cir. 1980), 79-2276, Phillips v. Merit Systems Protection Bd.

Docket Nº:79-2276.
Citation:620 F.2d 217
Party Name:Eulice L. PHILLIPS, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Case Date:April 03, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 217

620 F.2d 217 (10th Cir. 1980)

Eulice L. PHILLIPS, Petitioner,



No. 79-2276.

United States Court of Appeals, Tenth Circuit

April 3, 1980

Page 218

William Kanter, Civil Division, Dept. of Justice, Washington, D. C. (Harley E. Dilcher, Mill Valley, Cal., and Carl J. Busch, Concord, Cal., Dept. of the Navy, Military Sealift Command, Pac., Oakland, Cal., with him on brief), for respondent.

Before SETH, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.


After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). This cause is therefore ordered submitted without oral argument.

Respondent Merit Systems Protection Board seeks dismissal of the petition for review for lack of jurisdiction.

In 1973, petitioner Phillips received a notice of personnel action which removed him from the position of Ordinary Seaman in the Merchant Marines. Following appropriate appeal procedures to the Civil Service Commission, Phillips further appealed to the Board of Appeals and Review. Petitioner's removal was affirmed by decision issued by the Board of Appeals and Review on February 11, 1974. Thereafter, petitioner filed suit in the United States District Court for the Western District of Oklahoma.

The trial court remanded the case to the Merit Systems Protection Board for a new hearing at which time certain witnesses, who had been unavailable at the initial agency hearing in 1973, were to be made available to testify. On August 6, 1979, a hearing was held before the Board, who on November 6, 1979, affirmed the initial agency action. From that decision Phillips has filed a petition for review in this court.

Under the Civil Service Reform Act of 1978, the Civil Service Commission was reorganized into the Merit Systems Protection Board (Board) and the Office of Personnel Management (OPM). Pub.L. 95-454, Reorganization Plan No. 2 of 1978, 5 U.S.C. § 1101 note (Supp.1979). On January 11, 1979, the effective date of the Act, the central features of Reorganization Plan No. 2 were codified, with the adjudicative functions of the Commission to be administered by the independent Board and the management functions of the Commission...

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