NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit 2009-3151 WILLIAM B. WILEY, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Petition for review of the Merit Systems Protection Board in SF0831090055-1-1.

ON MOTION Before NEWMAN, Circuit Judge.

ORDER The Office of Personnel Management (OPM) moves to reform the caption to name the Merit Systems Protection Board as the respondent. OPM states that the Board consents to this motion. William B. Wiley opposes.

Pursuant to 5 U.S.C. § 7703(a)(2), the Board is designated as the respondent when the Board's decision concerns the procedure or jurisdiction of the Board. The employing agency is designated as the respondent when the Board reaches the merits of the underlying case. In this case, the Board dismissed the appeal because OPM rescinded its decision and advised that it would be issuing a new decision. Wiley's argument that the dismissal was improper does not change the fact that the Board did not reach the merits of the underlying case. Thus, pursuant to the statute, the Board is designated as the respondent.

Accordingly, IT IS ORDERED THAT: The motion is granted. The official caption is reflected above.

FOR THE COURT MAY 19 2009 /s/ Jan Horbalv Date Jan Horbaly Clerk imegiStor cc: Peter B. Broida, Esq.

Sameer P. Yerawadekar, Esq. MAY 19 2009 Jeffrey Gauger, Esq. JAN liORNALY CLERK s19

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