NOTE: This order is nonprecedential.
United States Court of Appeals
for the eFederal Circuit
LEROY ALFORD,
Petitioner,
V.
DEPARTMENT OF DEFENSE,
Respondent. -
2010-3112
Petition for review of the Merit Syste1ns Protection
Board in case no. DC333009(}703-I-1.
ON MOTION
Before PROST, Circuit Judge.
ORDER
The Department of Defense moves without opposition
to reform the caption to reflect the Merit S}/stem Pr0tection
Board as respondent Leroy Alford moves to "aInend the
claim before the Court."
Alf0rd filed an appeal alleging that the Depart1nent
violated his rights under the Veterans Employ1:nent
ALFORD V. DEFENSE 2
Opportunities Act of 1998 (VEOA) and the Uniformed
Services Employment and Reemployment Rights Act of
1994 (USERRA) by not considering his military service to
establish his initial civil service annual leave accrual
rate. Although the Board held that it had jurisdiction
over Alford’s VEOA claim, the Board dismissed the VEOA
claim for failure to state a claim upon which relief could
be granted The Board also dismissed Alford’s USERRA
claim for lack of jurisdiction, concluding that it lacked
jurisdiction to review USERRA complaints involving
Alford’s employer, the Defense Intelligence Agency.
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,
The deciding agency is designated as the respondent when
the Board reaches the merits of the underlying case. If the
merits of the agency action are reached by the Board, and
at the same time a matter of Board jurisdiction is involved,
the agency is the proper respondent. Spruill u. Merit Sys.
Prot. Bd., 978 F.2d 6'79, 686 (Fed. Cir. 1992).
Here, the Board addressed the underlying merits of
Alford’s VEOA claim, Thus, the Department is the proper
respondent
Accordingly,
IT ls 0RDERED THAT:
(1) The Departments motion is denied. The Depart-
ment’s brief is due within 21 days of the date of filing of
this order.
(2) Alford’s motion is denied.
3
ALFoR1:) v. DEFENsE
FoR THE CoURT
SEP 2 4 2010 lsi J an l-Iorbaly
Date J an Horbaly
cc: Leroy Alford
S
l\/lichael D. Austin, Esq.
Clerk
"sssrIStlts1s°"
SEP 24 2010
JAN HORBALY
CLERK