
    Leroy ALFORD, Petitioner, v. DEPARTMENT OF DEFENSE, Respondent.
    No. 2010-3112.
    United States Court of Appeals, Federal Circuit.
    Sept. 24, 2010.
   Before PROST, Circuit Judge.

ON MOTION

ORDER

The Department of Defense moves without opposition to reform the caption to reflect the Merit System Protection Board as respondent. Leroy Alford moves to “amend the claim before the Court.”

Alford filed an appeal alleging that the Department violated his rights under the Veterans Employment 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 v. Merit Sys. Prot. Bd., 978 F.2d 679, 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 Is Ordered That:

(1) The Departments motion is denied. The Department’s brief is due within 21 days of the date of filing of this order.

(2) Alford’s motion is denied.  