          NOTE:   This order is nonprecedential.

  nuteb . tates Court of Appeals'
      for tbe ffeberat circuit

          GABRIEL MAIKA'I DELAPENIA
                        Petitioner,
                            v.
     MERIT SYSTEMS PROTECTION BOARD,
                       Respondent,
                           and
           DEPARTMENT OF THE NAVY,
                       Intervenor.

                        2010-3116


   Petition for review of the Merit Systems Protection
Board in case no. SF0752090980-1-1.


                      ON MOTION


                       ORDER
    The Merit Systems Protection Board moves for leave to
intervene for purposes of moving to reform the official
caption to designate the Board as the respondent. The
Department of Health and Human Services opposes and
moves, in the alternative, for leave to intervene.
DELAPENIA v. NAVY	                                         2
     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.
     Gabriel Maika'i Delapenia filed an appeal at the Board
alleging that his resignation from	 employment was
involuntary. The Administrative Judge (AJ) found that
Delapenia had not made nonfrivolous allegations to support
her claim that his resignation was involuntary. The AJ
dismissed the appeal for lack of jurisdiction. Because the
Board held that it did not have jurisdiction, it did not
address the merits of his 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."). Thus, because the Board dismissed the
appeal for lack of jurisdiction, the Board is the proper
respondent.
     Accordingly,
     I T Is ORDERED THAT:
           The Board's motions are granted. The revised of-
ficial caption is reflected above.
           The Department's motion for leave to intervene is
granted.
     (3) The Board and intervenor should calculate the
due date for their briefs from the date of filing of this
3	                                         DELAPENIA     v. NAVY
order. If the intervenor intends to rely on the brief it filed
as respondent, it should so notify the clerk.
                                     F OR T HE C OURT

      JUL 2 7 2010                   /s/ Jan Horbaly
         Date                        Jan Horbaly
                                     Clerk

cc: Gabriel Maika'i Delapenia
      Kent C. Kiffner, Esq.
      Calvin M. Morrow, Esq. (Copy Of Petitioner's Infor
         mal Brief Enclosed)
s20

                                                   MED
                                          U.S. COURT OF APPEALS FOR
                                             THE FEDERAL CIRCUIT


                                               JUL 2 7 2010

                                                JAN HORBALY
                                                   CLER4
