William R. Kostan, Petitioner, v. Arizona National Guard, Respondent,andnational Guard Bureau, Intervenor, 925 F.2d 1478 (Fed. Cir. 1990)
Annotate this CaseORDER
NIES, Chief Judge.
We note that the National Guard Bureau (NGB) represented by the Department of Justice has submitted an intervenor's brief in appeal 90-3396 arguing for reversal of the Merit Systems Protection Board's decision.
The issue in this case is whether the MSPB has jurisdiction over an action against a state National Guard. We note that NGB argued that the MSPB lacked jurisdiction in the proceedings before the MSPB, and has changed its position on appeal.* Hence, the MSPB has not heard or considered NGB's arguments and it is possible that the result may be affected in view of the arguments now advanced. Because of the realignment on this important issue we consider it desirable to permit reconsideration by the board. Accordingly, we, sua sponte, remand 90-3396 and 90-3500 to the MSPB for further proceedings.
Upon consideration thereof,
IT IS ORDERED THAT:
Appeals 90-3396 and 90-3500 are remanded to the MSPB.
The same issue is present in William E. Sanford v. Connecticut National Guard, appeal no. 90-3500. NGB apparently will also be reversing its position in that case
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