                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2006-3140

                                MINORU M. FREUND,

                                                Petitioner,

                                           v.

                         DEPARTMENT OF THE AIR FORCE,

                                                Respondent.

Before SCHALL, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

                                       ORDER

       The Department of the Air Force submits a status report and requests that the

court reform the caption to designate the Merit Systems Protection Board as

respondent. The Air Force states that the Board suggests that the case be remanded in

light of this court’s recent decision in Parrish v. Merit Sys. Prot. Bd., 2006-3054 (Fed.

Cir. Feb. 7, 2007).

       Minoru M. Freund was appointed to a position as a research physicist. The

appointment was part of a demonstration project with an extended three-year

probationary period.   Freund’s employment was terminated during the probationary

period. Freund sought to appeal his termination to the Board. The administrative judge

(AJ) determined that even though the agency may not have followed the requirements

for eliminating Board appeal rights set forth in the statute governing the demonstration

project, the Board lacked authority to enforce those statutory requirements and thus
Freund did not have the right to seek Board review of his termination. Freund v. Air

Force, No. CH-315H-05-0773-I-1 (Oct. 21, 2005).

       This petition for review was stayed pending this court’s decision in Parrish. In

both cases, the Board determined that it lacked jurisdiction because a demonstration

project had eliminated appeal rights, even though the agency may not have complied

with certain statutory requirements. In Parrish, this court vacated and remanded for a

Board determination whether the agency satisfied the statutory requirements for

eliminating Board jurisdiction and, if not, whether the Board had jurisdiction in light of

the agency’s non-compliance.

       Because this case presents the same issue as Parrish, we determine that it is

appropriate to vacate and remand.

       Accordingly,

       IT IS ORDERED THAT:

       (1)    The AJ’s October 21, 2005 decision is vacated and the case is remanded

for further proceedings consistent with our decision in Parrish.

       (2)    The request to reform the caption is moot.

       (3)    Each side shall bear its own costs.

                                                 FOR THE COURT




       June 6, 2007                               /s/ Jan Horbaly
          Date                                   Jan Horbaly
                                                 Clerk
cc:    Minoru M. Freund
       Jack S. Groat, Esq.
       Michael Carney, Esq.
s17



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