Williams v. Merit Systems Protection Board

          Petition for review of the Merit Systems Protection Board in Nos. DA-0752-15-0530-M-1, SF-0752-15-0165-M-1.

          Paul Michael Schoenhard, McDermott, Will & Emery LLP, Washington, DC, argued for petitioner in 2017-1535. Also represented by Rebecca Harker Duttry, Nicole Jantzi, Elizabeth Louise Burke Teter.

          Harris L. Winns, San Jose, CA, pro se, in 2017-1663.

          Stephen Fung, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent in 2017-1535. Also represented by Bryan G. Polisuk, Katherine M. Smith, Jeffrey A. Gauger.

          Calvin M. Morrow, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent in 2017-1663. Also represented by Bryan G. Polisuk, Katherine M. Smith.

          Mollie Lenore Finnan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor in 2017-1535. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Reginald T. Blades, Jr.; Nadia K. Pluta, Office of General Counsel, United States Office of Personnel Management, Washington, DC; Morgan E. Rehrig, Office of General Counsel, United States Postal Service, Washington, DC.

          Before Dyk, Hughes, and Stoll, Circuit Judges.

          HUGHES, CIRCUIT JUDGE.

         Derek Williams and Harris Winns, both former employees of the United States Postal Service, were removed from their positions at the agency. They both separately sought review of their removals by the Merit Systems Protection Board. Only certain federal employees, as defined by statute, however, can seek review at the Board. And in this case, the Board held that neither individual qualified as an "employee" with appeal rights under 5 U.S.C. § 7511(a)(1)(B)(ii). Because we agree with the Board's interpretation of § 7511, we affirm its dismissal of Mr. Williams's and Mr. Winns's respective cases.

         As an alternative basis for Board jurisdiction, Mr. Williams contends that he retained appeal rights from a prior appointment because the U.S. Postal Service did not advise him on the loss of appeal rights that would result from his reappointment to a new position. We hold that an agency's failure to advise individuals on the potential loss of their appeal rights cannot create Board jurisdiction. Accordingly, we also affirm the Board's decision that Mr. Williams did not retain appeal rights from his prior appointment.

         I

         A

         Mr. Winns is a preference-eligible veteran who worked at the Postal Service. Starting in 2011, Mr. Winns served a series of time-limited appointments, each lasting for less than a year. He was last appointed as a Postal Support Employee, which he started after a five-day break from a previous appointment. Mr. Winns was removed for alleged misconduct before he served a full year as a Postal Support Employee.

         Mr. Winns appealed his termination to the Board and asserted whistleblower retaliation. The Board dismissed his appeal for lack of jurisdiction because Mr. Winns had not completed one year of "current continuous service, " and so did not qualify as an "employee" under § 7511(a)(1)(B)(ii). Mr. Winns appealed the dismissal to this court, where he argued that the Board's decision contradicted Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363 (1984). In Roden, the Board held that an individual who worked in a series of temporary appointments could qualify as an "employee" under § 7511 based on a "continuing employment contract" theory. Id. at 367-68.

         In response, the Board requested remand to consider whether Roden was still good law. We granted the Board's request. Winns v. Merit Sys. Prot. Bd., No. 16-1206 (Fed. Cir. Apr. 25, 2016), ECF No. 25. On remand, the Board held that the Office of Personnel Management's (OPM) regulations superseded Roden and abrogated the "continuing employment contract" theory. Winns v. U.S. Postal Serv., 124 M.S.P.R. 113, 117-21 (2017). The Board noted that 5 C.F.R. § 752.402 defines "current continuous employment" as "a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday." Id. at 118. After § 752.402 was promulgated, OPM explained that the rule was intended to abrogate the "continuing employment contract" theory, stating in a response to public comment that:

[T]he Board's holding in Roden, which characterized a series of temporary limited appointments for excepted service employees as a "continuing employment contract" and allowed brief breaks in service (as opposed to allowing no break) in computing current continuous service, was based, in large part, on OPM's earlier FPM guidance which was in effect at the time of the Roden decision. This guidance was superseded by 5 C.F.R. [§] 752.402(b) which became effective on July 11, 1988. The regulation makes clear that ...