Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
                           NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2007-3021

                                  MARIA E. WILLIAMS,

                                                  Petitioner,

                                             v.

                          MERIT SYSTEMS PROTECTION BOARD,

                                                  Respondent,

                                           and

                             DEPARTMENT OF THE ARMY,

                                                  Intervenor.

                                       ON MOTION

Before RADER, Circuit Judge.

                                        ORDER

       The Merit Systems Protection Board moves for leave to intervene and moves to

reform the caption to designate the Board as the respondent. The Board states that Maria

E. Williams opposes. The Department of the Army opposes and moves, in the alternative,

for leave to intervene.

       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.

       Williams filed an appeal at the Board alleging that her resignation from her position

of administrative support assistant was involuntary. The Administrative Judge determined
that she had not demonstrated that her resignation was involuntary and dismissed the

appeal for lack of jurisdiction. Because the Board held that it did not have jurisdiction, it

did not address the merits of her case. See Garcia v. Department of Homeland 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.   Involuntariness 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 determined by the agency’s compliance with § 7513(a)-(b). In other words, the

jurisdictional determination is not identical to the merits determination.”).

         Because the Board determined that it lacked jurisdiction, the Board is the proper

respondent.

         Accordingly,

         IT IS ORDERED THAT:

         (1)   The Board’s motions are granted. The revised official caption is reflected

above.

         (2)   The Army’s motion for leave to intervene is granted.

         (3)   The Board and the Army should calculate the due date for their briefs from

the date of filing of this order.


      February 15, 2007                             /s/ Randall R. Rader
            Date                                    Randall R. Rader
                                                    Circuit Judge
cc:      Maria E. Willams
         John S. Groat, Esq.
         Jeffrey A. Gauger, Esq. (copy of petitioner’s informal brief enclosed)

s17




2007-3021                                      2
