Two MSPB Cases On Appeal Rights Overruled

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In two companion cases before the United States Court of Appeals for the Federal Circuit, United States Postal Service employees challenged MSPB dismissals, for lack of jurisdiction, of their removal appeals.

The appeals were dismissed by the MSPB, which found that the employees did not have appeal rights because they did not meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)(ii), which requires one year of current continuous service.

At the Federal Circuit, one employee argued that he was an “employee” with appeal rights under Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363 (1984). The employee argued that he qualified as an “employee” under a “continuing employment contract” theory due to the aggregation of his temporary appointments. The Board requested a remand from the appeals court so that it could determine whether Roden, a case that was thirty-four years old, was still good law. The Board’s request was granted, and on remand, while the Board had a quorum, the Board found that regulations promulgated by the Office of Personnel Management (“OPM”) since Roden had superseded the case law, and that OPM had purposely abrogated the “continuing employment contract theory” when it promulgated 5 C.F.R. § 752.402. The Board dismissed the case, and the employee appealed again to the Federal Circuit.

The second employee argued at the Federal Circuit that he was an “employee” with appeal rights under Roden as well. The appeals court remanded the case to the Board, and while the Board had a quorum, it dismissed the case for lack of jurisdiction since the Board had just overruled Roden. However, the employee also argued that he was an “employee” with appeal rights because he retained his appeal rights from his prior appointment, citing Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344 (1991). In Exum, the Board found that employees retained appeal rights from a previous position if, when they accepted a new position, the agency failed to inform the employee that the change of position could result in the loss of MSPB appeal rights. The Board dismissed the appeal, finding that the employee did not meet the requirements of Exumbecause he did not show that he would have rejected his new position had he known that he would lose his appeal rights. The employee appealed again to the Federal Circuit.

Considering both cases together, the Federal Circuit affirmed the Board’s dismissals and overruling of Roden. The appeals court also overruled Exum. Specifically, the appeals court found that the “continuing employment contract” theory in Roden was abrogated by OPM’s superseding regulations, which were entitled to deference. In overruling Exum, the appeals court found that its previous decision in Carrow v. Merit Systems Protection Board, 626 F .3d 1348 (Fed Cir. 2010) was correct, and that an agency’s failure to advise an employee on the terms of a new appointment does not create appeal rights in positions for which Congress did not grant appeal rights. The appeals court noted the Board’s practice of applying Exum only to transfers within the same agency, but found that Carrow, a case that involved an inter-agency transfer, was equally applicable to intra-agency transfers, and so specifically disapproved the Board’s Exum rule.

For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the Board’s dismissal of the two cases for lack of jurisdiction.

Read the full case: Williams v. MSPB, Winns v. MSPB.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update