Maglietti v. Merit Systems Protection Board

NOTE: This order is nonprecedentia1.

United States Court of AppeaIs for the FederaI Circuit

RENATA P. MAGLIETTI,

Petiti0n,er,

V.

MERIT SYSTEMS PROTECTION BOARD,

Resp0ndent. s

2010-3144

Petition for review of the Merit Syste1ns Protection B0ard in PH07521000'73-I-1.

ON MOTION

ORDER

The Department of Veterans Aff`ai1's moves to reform the caption to name the Merit Systems Protection Board as respondent Renata P. Mag1ietti opposes Pursuant to 5 U.S.C. § 7703(a)(2), the Board is desig- nated as the respondent when the Board's decision con- cerns 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.

MAGLIETTI V. MSPB 2

Because the Board held that it did not have jurisdic- tion, it did not address the merits of the case. See Garcia v. Department of H0meland Security, 437 F.3d 1322, 1341 (Fed. Cir. 2006) (en banc) (“In a constructive action case, the jurisdictional fact at issue is almost always whether the facially voluntary action was involuntary Involun- tariness is essential for jurisdiction and it must be proven by the claimant. But while jurisdiction is established under 5 U.S.C. § 7512, the merits of the case are deter- mined by the agency’s compliance with § 7513(a)-(b). ln other words, the jurisdictional determination is not identi- cal to the merits determination.").

Accordingly,

I'r ls ORDERED THAT: (1) The motion is granted The revised official caption is reflected above. (2) The Board should calculate its brief due date from the date of filing of this order.

FOR TI~IE COURT

UCT 22 201

0 lsi J an Horbaly

Date J an Horbaly

Clerk cc: Renata P. Maglietti

David M. Hibey, Esq.

David Brooks, Esq. (copy of petitioner’s informal brief enclosed) s19

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0CT 2 2 2010

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