NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3140
MINORU M. FREUND,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Before SCHALL, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
ORDER
The Department of the Air Force submits a status report and requests that the
court reform the caption to designate the Merit Systems Protection Board as
respondent. The Air Force states that the Board suggests that the case be remanded in
light of this court’s recent decision in Parrish v. Merit Sys. Prot. Bd., 2006-3054 (Fed.
Cir. Feb. 7, 2007).
Minoru M. Freund was appointed to a position as a research physicist. The
appointment was part of a demonstration project with an extended three-year
probationary period. Freund’s employment was terminated during the probationary
period. Freund sought to appeal his termination to the Board. The administrative judge
(AJ) determined that even though the agency may not have followed the requirements
for eliminating Board appeal rights set forth in the statute governing the demonstration
project, the Board lacked authority to enforce those statutory requirements and thus
Freund did not have the right to seek Board review of his termination. Freund v. Air
Force, No. CH-315H-05-0773-I-1 (Oct. 21, 2005).
This petition for review was stayed pending this court’s decision in Parrish. In
both cases, the Board determined that it lacked jurisdiction because a demonstration
project had eliminated appeal rights, even though the agency may not have complied
with certain statutory requirements. In Parrish, this court vacated and remanded for a
Board determination whether the agency satisfied the statutory requirements for
eliminating Board jurisdiction and, if not, whether the Board had jurisdiction in light of
the agency’s non-compliance.
Because this case presents the same issue as Parrish, we determine that it is
appropriate to vacate and remand.
Accordingly,
IT IS ORDERED THAT:
(1) The AJ’s October 21, 2005 decision is vacated and the case is remanded
for further proceedings consistent with our decision in Parrish.
(2) The request to reform the caption is moot.
(3) Each side shall bear its own costs.
FOR THE COURT
June 6, 2007 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Minoru M. Freund
Jack S. Groat, Esq.
Michael Carney, Esq.
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