NOTE: This order is nonprecedential.

Wniteb ~tate~ (!Court of §ppeaI~ for tbe jfeberaI (!Circuit

MATTHEW J. NASUTI, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

2011-3048

Petition for review of the Merit Systems Protection Board in case no. DC1221090356-M-1.

ON MOTION

ORDER

The Department of State moves to recaption to name the Merit Systems Protection Board as respondent. Matthew Nasuti 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. Here, NASUTI v. MSPB 2

the Board dismissed Nasuti's appeal for lack of jurisdiction, concluding that the letter he submitted could not be con- sidered new evidence and added to the record. The Board never reached the merits. Accordingly, IT Is ORDERED THAT: (1) The motion is granted. The revised official cap- tion is reflected above.

(2) The Board should calculate its brief due date from the date of filing of this order.

FOR THE COURT

MAR 10 2011 /s/ Jan Horbaly Date Jan Horbaly Clerk

cc: Matthew J. Nasuti FILED u.s. COURT OF APPEALS FOR A. Bondurant Eley, Esq. THE FEDERAL CIRCUIT Jeffrey A. Gauger, Esq. MAR 102011 s23 JAti HORBAlY C\.EII(