James D. Surdo, Jr. v. Merit Systems Protection Board

91 F.3d 171

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
James D. SURDO, Jr., Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 96-3248.

United States Court of Appeals, Federal Circuit.

June 26, 1996.

ON MOTION

ARCHER, Chief Judge.

ORDER

The Department of Justice moves (1) to reform the caption to designate the Merit Systems Protection Board as respondent1 and (2) for an extension of time for the respondent to file its brief. Justice states that the Board and James D. Surdo, Jr. consent.2

1

Pursuant to 5 U.S.C. § 7703(a)(2), the Board is designated as the respondent when the Board's decision concerns solely the procedure or jurisdiction of the Board. Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 686 (Fed.Cir.1992). The agency is the proper respondent when the Board reaches the merits of the underlying personnel action. Id. In this case, Surdo challenged his separation pursuant to the expiration of his temporary appointment. The Administrative Judge (AJ) determined that the agency's failure to renew his temporary appointment when it expired did not constitute an appealable adverse action. The AJ further determined that Surdo's claim that the agency failed to use proper procedures in his separation was not an independent source of Board jurisdiction. This decision was not a decision on the merits. Thus, the Board is the proper respondent in this petition for review.

2

Accordingly,

IT IS ORDERED THAT:

3

(1) The June 5, 1996 dismissal order is vacated, the mandate is recalled, and Surdo's petition for review is reinstated.

4

(2) The motion to reform the caption is granted.

5

(3) The motion for an extension of time is granted. The Board's brief is due within 21 days of the date of filing of this order.

6

(4) The revised official caption is reflected above.

1

Justice is reminded that a copy of the Board's decision must be attached to every motion to reform the caption

2

Surdo's petition for review was dismissed on June 5, 1996 for failure to pay the filing fee and to file a Fed.Cir.R. 15(c) statement concerning discrimination. The court has now granted Surdo's motion for leave to proceed in forma pauperis, and Surdo has submitted a R. 15(c) statement