Gingery v. Dept. Of the Treasury

NOTE: This order is nonprecedential

United States Court of Appeals for the FederaI Circuit

STEPHEN W. GINGERY,

Petitioner,

V.

DEPARTMENT OF THE TREASURY,

Respon.dent.

2010-3093

Petition for review of the Merit Systerns Protection Board in CH3330090303-I-1.

ON MOTION

ORDER

Stephen W. Gingery moves to reform the caption to name the Merit Systems Protection Board as the respondent. The Department of the Treasury opposes Gingery also moves without opposition for 21 30-day extension of time.

Gingery Hled a complaint with the B0ard seeking corrective action under the Veterans Emp1oyn:1ent Opportunities Act of 1988 (VEOA) for failure to select him GINGERY v. TREASURY 2 to the position of lnternal Revenue Agent for announced vacancies in Detroit, Pontiac, and Mt. Clemens, Michigan. The Ad1ninistrative Judge (AJ) issued an initial decision denying Gingery’s request for a corrective action. Gingery sought review of the AJ’s initial decision by the Board. In its Decen1ber 28, 2009 decision now on review, the Board sustained the AJ’s denial of Gingery’s request for corrective action. However, the Board modified the AJ’s decision to reflect that the Board lacked jurisdiction over the challenge to the nonselection for the Detroit or Pontiac positions because Gingery had failed to exhaust his administrative remedies before seeking review by the Board.

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 Because the Board in part reached the merits of the underlying VEOA corrective action, the agency is the proper respondent

According1y,

IT ls ORDERE1) THAT: (1) The motion to reform the caption is denied. (2) The motion for an extension of time is granted Gingery’s brief is due within 30 days from the date of filing of this order.

FOR THE COURT .JUN11 2810 lsi J an Horbaly

Date J an Horbaly

Clerk

FlLED u.s. count rim-.?»§,.t'?§1§*¢tS.4’°“

JUN 1 1 2010 .lAN HORBALY

GL_ERK cc: Stephen W. Gingery

S

Devin A. Wolak, Esq.

GlNGERY V. TREASURY