                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3126

                                  CARLOS A. RAMOS,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent,

                                           and

                       DEPARTMENT OF HOMELAND SECURITY,

                                                 Intervenor.

               Petition for review of the Merit Systems Protection Board in
                                    DA0752080539-I-1.

                                      ON MOTION

Before MAYER Circuit Judge.

                                       ORDER

      The Department of Homeland Security (DHS) moves to reform the caption to

name the Merit Systems Protection Board as respondent and moves for leave to

intervene in this petition for review. Carlos A. Ramos opposes and submits a

supplemental response.

      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. The

employing agency is designated as the respondent when the Board reaches the merits of

the underlying case.
        Ramos filed an appeal challenging his termination from his position as a

Customs and Border Protection Officer. The Administrative Judge dismissed the case

for lack of jurisdiction because he found that that Ramos was in the excepted service, had

not served a two year probationary period, and was not preference eligible and thus did

not have the right to seek Board review of his termination. Because the Board did not

address the merits of the case, the Board is the proper respondent.

       Accordingly,

        IT IS ORDERED THAT:

               The motion to reform the caption and to intervene is granted. The revised

official caption is reflected above.

               The Board and DHS should calculate the due date for their briefs from the

date of filing of this order.

                                                 FOR THE COURT



      JUL 2 2 2009                              /s/ Jan Horbalv
            Date                                Jan Horbaly
                                                Clerk

cc:     Carlos A. Ramos
        Stacey K. Grigsby, Esq.
        Jeffrey Gauger, Esq.

s17                                                     Ua COURT OFSEALS FOR
                                                                PI I
                                                          THE FEDERAL CIRCUIT



                                                             JUL 2 2 2009
                                                              JAN hUtwsl
                                                                 CLERK




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