Donald S. Manion, Petitioner, v. Merit Systems Protection Board, Respondent,department of Health and Human Services, Intervenor, 737 F.2d 1020 (Fed. Cir. 1984)

ORDER

Petitioner, Donald S. Manion (Manion), by this appeal seeks review of a final decision of the Merit Systems Protection Board (MSPB), which found that the Department of Health and Human Services (agency) had established good cause for Manion to be suspended for 30 days.

Manion is an administrative law judge (ALJ), for the Office of Hearing and Appeals, Social Security Administration, Department of Health and Human Services (DHHS), in San Rafael, California.

MSPB and DHHS, on April 23, 1984, jointly moved this court to substitute the employing agency, DHHS, for the MSPB, as the proper party-respondent herein, in light of Hopkins v. MSPB, 725 F.2d 1368, 1372 n. 3 (Fed. Cir. 1984).

In Hopkins, this court stated that, "In short, the touchstone for determining who is to be named respondent is Congress' own words, 'the agency responsible for taking the action.' [5 USC] Sec. 7702(a) (2) [sic Sec. 7703(a) (2)]." Procedurally, actions are taken against ALJ's pursuant to 5 U.S.C. § 7521(a) which provides:

An action may be taken against an administrative law judge ... by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.

In this case, the DHHS charged Manion with insubordination and proposed to suspend him for 30 days. The MSPB conducted a proceeding pursuant to Sec. 7521 to determine whether the agency had good cause to suspend Manion and on June 17, 1983, authorized the DHHS to proceed with its proposed suspension.

We agree with the MSPB and DHHS that even though the MSPB authorized the proposed agency action, the MSPB is not the agency which took the action under 5 U.S.C. § 7703(a) (2).

Accordingly, when the MSPB authorized an agency-proposed action pursuant to 5 U.S.C. § 7521, the agency is the proper party-respondent. The joint motion by MSPB and DHHS to substitute the DHHS for the MSPB as party-respondent in the above-captioned case is granted.