DEREK T. WILLIAMS, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent UNITED STATES POSTAL SERVICE, Intervenor HARRIS L. WINNS, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
Petition for review of the Merit Systems Protection Board in
Nos. DA-0752-15-0530-M-1, SF-0752-15-0165-M-1.
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.
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.
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.
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.
Dyk, Hughes, and Stoll, Circuit Judges.
HUGHES, CIRCUIT JUDGE.
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.
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.
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.
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.
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 ...