                         NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2009-3151

                                  WILLIAM B. WILEY,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.

               Petition for review of the Merit Systems Protection Board in
                                    SF0831090055-1-1.

                                      ON MOTION

Before NEWMAN, Circuit Judge.

                                       ORDER

      The Office of Personnel Management (OPM) moves to reform the caption to name

the Merit Systems Protection Board as the respondent. OPM states that the Board

consents to this motion. William B. Wiley opposes.

        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. In this case, the Board dismissed the appeal because OPM

rescinded its decision and advised that it would be issuing a new decision. Wiley's

argument that the dismissal was improper does not change the fact that the Board did not

reach the merits of the underlying case. Thus, pursuant to the statute, the Board is

designated as the respondent.
       Accordingly,

       IT IS ORDERED THAT:

       The motion is granted. The official caption is reflected above.

                                          FOR THE COURT

      MAY 19   2009                         /s/ Jan Horbalv
       Date                               Jan Horbaly
                                          Clerk
                                                                 imegiStor
cc:    Peter B. Broida, Esq.
       Sameer P. Yerawadekar, Esq.                                   MAY 19 2009
       Jeffrey Gauger, Esq.                                              JAN liORNALY
                                                                            CLERK
s19




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