Smart v. Merit Systems Protection Board
This text of Smart v. Merit Systems Protection Board (Smart v. Merit Systems Protection Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3040
REX L. SMART,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DE0752080232-I-1.
ON MOTION
Before MOORE, Circuit Judge.
ORDER
The Merit Systems Protection Board moves for leave to intervene for the purpose
of moving to reform the official caption to designate the Board as respondent. The
Department of the Interior and Rex L. Smart oppose. The Board replies.
Smart filed an appeal alleging that the Department of the Interior forced him to
retire from his position as an office manager. The Board dismissed the appeal for lack of
jurisdiction, concluding Smart had not established by a preponderance of the evidence
that the Department of the Interior forced him to retire.
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. In this
case, the Board dismissed the appeal for lack of jurisdiction without reaching the merits of Smart's involuntary retirement claim. Where the Board determines it lacks jurisdiction
over such a case, the Board does not and cannot decide the merits of the case. Garcia v.
Dept of Homeland Sec., 437 F.3d 1322, 1340-41 (Fed. Cir. 2006). Because the Board
determined that Smart did not establish that his decision to retire constituted an
appealable involuntary retirement, the Board is the proper respondent in this petition for
review.
Accordingly,
IT IS ORDERED THAT:
The Board's motions are granted. The revised official caption is reflected
above.
The respondent should calculate its brief due date from the date of filing of
this order.
FOR THE COURT
APR 2 2009 /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Rex L. Smart Leslie Cayer Ohta, Esq. Jeffrey A. Gauger, Esq. (copy of petitioner's informal brief enclosed) s20 FILED U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
APR 0 2 2009
thig HORLimLY CLERK
2009-3040 2
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