James D. Surdo, Jr., Petitioner, v. Merit Systems Protection Board, Respondent, 91 F.3d 171 (Fed. Cir. 1996)

Pursuant to 5 U.S.C. § 7703(a) (2), the Board is designated as the respondent when the Board's 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 the proper respondent when the Board reaches the merits of the underlying personnel action. Id. In this case, Surdo challenged his separation pursuant to the expiration of his temporary appointment. The Administrative Judge (AJ) determined that the agency's failure to renew his temporary appointment when it expired did not constitute an appealable adverse action. The AJ further determined that Surdo's claim that the agency failed to use proper procedures in his separation was not an independent source of Board jurisdiction. This decision was not a decision on the merits. Thus, the Board is the proper respondent in this petition for review.

Accordingly,

IT IS ORDERED THAT:

(1) The June 5, 1996 dismissal order is vacated, the mandate is recalled, and Surdo's petition for review is reinstated.

(2) The motion to reform the caption is granted.

(3) The motion for an extension of time is granted. The Board's brief is due within 21 days of the date of filing of this order.

(4) The revised official caption is reflected above.