Georgette Moore, Petitioner, v. Merit Systems Protection Board, Respondent, 67 F.3d 319 (Fed. Cir. 1995)

ORDER

Georgette Moore moves for reconsideration of this court's July 19, 1995 order dismissing her petition for review for both failing to pay the filing fee and file a Fed. Cir. R. 15(c) statement. The Department of the Treasury has not responded. The Merit Systems Protection Board moves to reform the caption to designate it as the respondent. The Board states that Treasury consents. Moore has not responded.

Moore has now paid the filing fee, filed her Rule 15(c) statement, and submitted an informal brief. Thus, her petition for review may be reinstated.

Pursuant to 5 U.S.C. § 7703(a) (2), the Board is designated as the respondent when its decision concerns solely the procedure or jurisdiction of the Board. Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 686 (Fed. Cir. 1992). The agency is designated as the respondent when the Board reaches the merits of the underlying personnel action. Id. In this case, the Administrative Judge (AJ) determined that Moore's one-day suspension was not an appealable action and, therefore, the Board did not have jurisdiction over Moore's appeal. The AJ's decision concerns solely the jurisdiction of the Board and, thus, the Board is proper respondent in this petition for review.

Accordingly,

IT IS ORDERED THAT:

(1) Moore's motion for reconsideration is granted. The court's July 19, 1995 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.

(2) The Board's motion to reform the caption is granted. The revised official caption is reflected above.

(3) The Board should calculate the due date for its brief from the date of filing of this order.