NOTE: This order is nonprecedential. United States Court of AppeaIs for the FederaI Circuit TERRY KENNINGTON, Petitioner, V. MERIT SYSTEMS PROTECTION BOARD, Respondent. 2011-3192 Petition for review of the Merit Systems Protection Board in case no. DE1221100502-W-1. ON MOTION ORDER The Departn1ent of the Treas1.u'y moves to recaption to name the Merit Systen1s Protection Board as respondent. Pursuant to 5 U.S.C. § 7'7U3(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, the Board dismissed Kennington’s appeal for lack of juris-

KENNlNGTON V. MSPB 2 diction because it found that he failed to make a non- frivolous allegation that he made a protected disclosure under the Whistleblower Protection Act, 5 U.S.C. 2302 (b)(8). Thus, the Board is the proper respondent in this petition for revieW. Acc0rdingly, IT ls ORDERED THAT: The motion is granted The revised official caption is reflected above . FoR THE COURT AUG 2 6 2011 s /s/ J an Horbaly Date J an Horbaly Clerk § 9 ila mg . 393 cc: Terry L. Kennington lI;§PPEALS F0R DaWn E. Goodman, Esq. RAL ClRCU|T l\/Iichael Carney, Esq. AUG 2 6 2011 s21 JAN|'l0RBAL¥ C|.EHi