NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit 2009-3293 Ai~rroNio wi /-\i=ooAcA, Petitioner, V. mean systems PRoTEcrioN soAi=<o, Respondent.

Petition for review of the lV|erit Systems Protection Board in AT0752090223-|-'l .

ON lVlOTlON R D E R The Merit Systems Protection Board moves for leave to intervene for purposes of moving to reform the caption to designate the Board as respondent. The Department of Homeland Security opposes. The Board replies. Antonio lVl. Apodaca responds.

Apodaca moves without opposition for leave to file an amended informal brief, with amended infom"ial brief attached 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. g Apodaca filed an appeal alleging -that his resignation was involuntary The Administrative Judge determined that Apodaca had not demonstrated that his resignation was involuntary and dismissed the appeal for lack of jurisdiction Because the Board held that it did not have jurisdiction, it did not address the merits of the case § Garcia v. Department of Homeland Security, 437 F.3d 1322, 1341 (Fed. Cir. 2006) (en banc) ("ln a constructive action case, the jurisdictional fact at issue is almost aiways whether the facially voiuntary action was involuntary. involuntariness 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 determined by the agency’s compliance with § 75‘l3(a)- (b). in other words, the jurisdictional determination is not identical to the merits determination"). Thus, the Board is the proper respondent Accordingly, lT lS 0RDERED THAT: (1) The Board’s motion is granted. The revised official caption is reflected above. (2) Apodaca's motion for leave to file an amended informal brief is granted.

The submission attached to Apodaca’s motion as Enclosure 1 shall be treated as Apodaca’s informal brief. l (3) The Board should calculate the due date for its brief from the date of filing of this order.

FOR THE COURT u_ ’ FlLEP ’“rEE‘éEBi9RF.L¢5'é%'r?rF°“ l1AR 10 2010 MM: jj lsi Jan Horbaiy t ` Date - Jan Horbaiy _|AN H@RBALy t Clerk gL§gg cc: Antonio ll/l. Apodaca Austin M. Fu|k, Esq. ' Jeffrey A. Gauger, Esq. (copy of Apodaca's amended informal brief enc|osed) s17 2009-3293 2