Barbara L. Hunt, Plaintiff-appellant, v. Michael P. W. Stone, Secretary of the Army, Defendant-appellee, 39 F.3d 1177 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 39 F.3d 1177 (4th Cir. 1994) Submitted June 14, 1994. Decided Nov. 14, 1994

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-93-494-A).

Barbara L. Hunt, appellant Pro Se.

Richard Parker, Office of the United States Attorney, Alexandria, VA, for appellee.

E.D. Va.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Before WIDENER, HALL, and WILKINSON, Circuit Judges.

OPINION

PER CURIAM:


Appellant appeals the district court's order denying her motion for summary judgment and granting Appellee's motion for summary judgment. The district court's analysis regarding its lack of jurisdiction over the case is correct, and the denial of Appellant's summary judgment motion is, therefore, affirmed. We note, however, that the district court should have found that Appellant's petition for review was filed within the thirty-day time limit of 5 U.S.C. § 7703(b) (1) (1988). Appellant's petition should have been deemed filed on the date that the district court clerk received it along with what Appellant reasonably believed was the filing fee. See Fed. R. Civ. P. 3; Fed. R. Civ. P. 5(e); Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988); Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987); Rodgers ex rel. Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986); see also, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978). Because that date was within the thirty-day period, we vacate the portion of the district court's order refusing to transfer the action and remand the case for a determination of whether a transfer to the United States Court of Appeals for the Federal Circuit would be "in the interests of justice." 28 U.S.C. § 1631 (1988); see Afifi v. United States Dep't of Interior, 924 F.2d 61, 62 (4th Cir. 1991).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.