                           NOTE: This order is nonprecedential.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




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