NOTE: This order is nonprecedential.
United States Court of Appea|s for the Federal Circuit
2010-3054
SELlNDA B. COSTA,
Petitioner,
v_
MER|T SYSTEMS PROTECT|ON BOARD,
Respondent,
and
DEPARTMENT OF JUST|CE,
lntervenor.
Petition for review of the Merit Systems Protection Board in
case no. DE07520900`/5-l-2. -
ON MOT!ON
0 R D E R
The Merit Systems Protecti0n Board moves for leave to intervene for purposes of
moving to reform the caption to designate the Board as respondent. The Department of
Justice has not responded to the motion, but in a footnote within its informal brief requests
leave to intervene Selinda B. Costa moves for leave to tile her corrected brief out of time.
Pursuant to 5 U.S.C. § 7703(a)(2), the Board is designated as the respondent when
the Boa_rd's decision concems 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.
Selinda B. Costa filed an appeal alleging that her resignation was invo|untary.
The Administrative Judge determined that Costa 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 the case §
Garcia v. Department of Homeiand Security, 437 F.3d ‘i322, 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 invoiuntary. 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 detem'iined by the agency’s compliance
with § 7513(a)-(b). in other words, the jurisdictional detem1ination is not identical to the
merits detem1ination"). Thus, the Board is the proper respondent.
Acoordingly,
|T lS ORDERED T|-lAT:
(1) The Board’s motions are granted. The Department of Justice is granted
leave to intervene The Department's brief, received on April 22, 2010, will be treated as
its inteNenor's brief. The revised official caption is reflected above
(2) Costa's motion for leave to file her corrected brief out of time is granted.
(3) The Board should calculate its brief due date from the date of filing of this
order.
FOR THE COURT
MAY 1 2 mm IslJan Horbaly
xi Date  Jan Horbaly ' j
Clerk
cc: Selinda B. Costa
David M. Hibey, Esq.
Jeffrey A. Gauger, Esq. (copy of petitioner's informal brief enciosed)
s2D
3-..
te
§E=»
"-sites r.ii?r°“
i“|AY 1 2 ZB1U
2010-3054 2 ’ANc'fg§§AL"

