NOTE: This order is nonprecedentia|.
United States Court of Appea|s for the Federal Circuit
2009-3249
JAMES E. SW|NK, JR.,
Petitioner,
v.
MER|T SYSTEMS PROTECT|ON BOARD,
Responden_t.
Petition for review of the Merit Systems Protection Board
in CH752S090328-|-1. ~
ON N|OT|ON
0 R D E R
The United States Posta| Service moves to reform the official caption to designate
the N|erit Systems Protection Board as the respondent. James E. Swink, Jr. opposes.
Pursuant to
5 U.S.C. § 7703(a)(2), the Board is designated as the respondent
when the Board's decision concerns 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.
ln this case, the Board dismissed the appeal for lack of jurisdiction Thus, the
Board is -the proper respondent
According|y,
lT IS ORDERED THAT:
(1) The motion is granted. The revised official caption is refiected above.
compensation due to the failure to receive cost-of-living salary adjustments (COi_As) to
which they assert entitlement pursuant to the Ethics Reform Act of 1989. The United
States moved to dismiss the compiaint. On October 16, 2009, the _Court of Federal
Claims dismissed the complaint. in that October 16, 2009, order, the Court of Federal
Claims stated:
Plaintiffs acknowledge that the facts and the law of this case are
controlled entirely by a ruling of the Court of Appeals for the Federal
Circuit in l/WiIiams v. United States l/Wilr'ams v. United States,
240 F.3d
1019 (Fed. Cir. 2001),Ll1'g denied,
240 F.3d 1366, § denied,
535 U.S.
911 (2002). They do not attempt to distinguish this case from V1/iiliams, or
ask that we consider new or additional circumstances P|aintiffs "do not
oppose dismissal of the Complaint on the basis of the l/l/iiiiams
precedent." Seeid.
Beer v. United States, No. 09-CV-37, at 1 (Fed. C|. Oct. 16, 2009) (order dismissing
complaint).
The plaintiffs appealed and filed a petition for hearing en banc. Within the
petition for hearing en banc, the plaintiffs moved in the alternative for summary
afHrmance if the petition for hearing en banc were denied. As noted, the court today
denies hearing en banc in the ordinary course pursuant to internal Operating
Procedure 2, paragraph 4, the motion for summary affirmance was referred to the
motions panel. We now rule on that motion.
- in their motion for summary affirmance, the plaintiffs state:
in the alternative plaintiffs respectfully move for summary
afHrmance. As noted above, plaintiffs do not deny that their claims are
foreclosed_by the Wr'Iiiams precedent Under that precedent, the decision
below "is so clearly correct as a matter of law that no substantial question
regarding the outcome of the appeal exists." Joshua v. United States, 17
F.3d 37s, 330 (Fed. cit 1994).
201o-5012 - 2 _
