Maglietti v. Merit Systems Protection Board

Opinion

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 FlLED u.s. c0uRr mg .=ED€é1l”&§%%HF°“ 0CT 2 2 2010 1mHoaBALv clean