Williams v. Merit Sys. Prot. Bd.
Opinion
*1158
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
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
,
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 On remand, the Board held that the Office of Personnel Management's (OPM) regulations superseded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.
,
[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 OPM's policy governing the computation of current continuous employment allows for no break in Federal civilian employment.
Reduction in Grade and Removal Based on Unacceptable Performance,
B
Mr. Williams is also a preference-eligible veteran. He was appointed as a Rural Carrier Associate (RCA) by the U.S. Postal Service. While serving as a RCA, Mr. Williams applied, and was selected, for an appointment as a City Carrier Assistant (CCA). Both RCAs and CCAs are non-career positions. CCA positions are subject to a collective bargaining agreement. That agreement states that CCA positions are limited to "terms of 360 calendar days" and must "have a break in service of 5 days between appointments." J.A. in No. 17-1535 at 467.
Mr. Williams served as a RCA for around 22 months before he was reappointed to a CCA position. Under the collective bargaining agreement, Mr. Williams took a five-day break in service between his RCA and CCA positions. After serving three months as a CCA, Mr. Williams was involved in an automobile accident, and the Postal Service terminated his employment. Mr. Williams appealed his termination to the Board, and argued that the Postal Service violated his collective bargaining agreement and engaged in prohibited personnel practices.
The administrative judge dismissed Mr. Williams's appeal for lack of jurisdiction. Because of the five-day break in service between Mr. Williams's RCA and CCA appointments, the administrative judge determined that Mr. Williams did not complete one year of continuous service, as required by § 7511(a)(1)(B)(ii). Accordingly, the administrative judge held that Mr. Williams was not a Postal Service employee with Board appeal rights. Mr. Williams petitioned for review of the initial decision, which the Board denied.
Mr. Williams appealed to this court. Under Roden , Mr. Williams argued that he was an "employee" with appeal rights because his appointment as a RCA should count towards the one year of "current continuous service" required by § 7511(a)(1)(B)(ii). As in Mr. Winns's appeal, the Board asked this court for a remand to reconsider Roden , and we granted the Board's request. Williams v. Merit Sys. Prot. Bd. , No. 16-1629 (Fed. Cir. June 22, 2016), ECF No. 19.
Because it had overruled the "continuing employment theory" in
Winns
,
Alternatively, Mr. Williams argued that he retained his appeal rights from his RCA position under the
Exum
rule. In
Exum v. Department of Veterans Affairs
, the Board held that an employee could retain their appeal rights from a prior position if the agency fails to inform the employee that their change in position might result in a loss of appeal rights.
Mr. Williams and Mr. Winns appeal the Board's dismissal of their respective claims. We have jurisdiction over both appeals under
II
We may set aside a decision of the Board if the decision is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence."
A
We start with the Board's interpretation of "current continuous service." Section 7511 defines "employee" for the provisions that give the Board jurisdiction over appeals by federal employees.
Wilder v. Merit Sys. Prot. Bd.
,
Congress authorized OPM to "prescribe regulations to carry out the purpose of th[e] subchapter" of the Civil Service Reform Act that includes § 7511.
At Chevron step one, we find that Congress did not speak directly to whether a series of temporary appointments, with short breaks in between, can count as "continuous service" under § 7511. There is no definition of "current continuous service" in the statute. Nor are we aware of any legislative history that tells us whether Congress intended the statute to cover an individual who was employed through a series of temporary appointments.
Nevertheless, Mr. Williams contends the statute is clear that employment is "continuous" where both parties intend the employee to continue working from position to position, even if there are short breaks in between. To support this reading of the statute, Mr. Williams cites to Board decisions finding that a series of temporary appointments counts as "continuous service" under the "continuing employment contract" theory.
See, e.g.
,
Roden
,
At
Chevron
step two, we find that OPM's interpretation of § 7511 is a permissible construction of the statute. OPM's regulation 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."
Mr. Williams further asserts that OPM's interpretation of § 7511 is not entitled to deference because it merely parrots the statute. It is true that "[a]n agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language."
Gonzales v. Oregon
,
The Board also did not err in applying § 752.402 to the appeals of Mr. Williams and Mr. Winns. It is undisputed that Mr. Williams took a five-day break between his RCA and CCA positions. Likewise, Mr. Winns started as a Postal Support Employee after a five-day break from a previous appointment. Neither Mr. Williams nor Mr. Winns qualified as an employee under OPM's regulation because they had a break in service of at least one workday. Thus, the Board was correct in finding that Mr. Williams and Mr. Winns did not meet the requirement of "current continuous service," as the term is defined by OPM.
B
Next, we turn to whether Mr. Williams has appeal rights before the Board under the
Exum
rule. In
Exum
, the Board held that an agency's failure to inform an employee that a voluntary change in position might lead to a loss of appeal rights could result in the retention of appeal rights.
The Board itself has limited the
Exum
rule to transfers within the same agency.
Park v. Dep't of Health & Human Servs.
,
In
Carrow
, we confirmed that
Exum
does not apply to federal workers who transfer between agencies, but we relied on a different rationale than the Board.
[The statute] does not give the Board jurisdiction over an appeal from a removal by a person who does not qualify as an "employee." ... By statute, [the appellant's] position with the DVA did not carry Board appeal rights, and the DVA's failure to advise Mr. Carrow of the terms of his appointment does not create appeal rights for positions as to which Congress has not given the Board appellate jurisdiction.
*1163
Although
Carrow
involved an inter-agency transfer, its rationale is equally applicable to transfers within the same agency. Unlike the Board's decision in
Park
, our reasoning did not depend on the agency's lack of knowledge about the potential employee's previous appointment. Instead, the dispositive issue was whether an employee's position carries statutorily created appeal rights.
Our decision here is distinguishable from situations in which an employee with appeal rights is coerced or deceived into resigning or retiring.
Covington v. Dep't of Health & Human Servs.
,
By contrast, Mr. Williams made no allegation that he was misled or coerced into taking the new CCA position. He voluntarily applied, and was selected, for the CCA position. Taking on a new position often leads to various changes in benefits. The agency has no obligation to advise its employees of all the potential changes associated with a new job. And certainly the agency's failure to advise its employee on the full range of consequences associated with a new position does not make the employee's decision to accept the position involuntary.
Conceivably, there may be situations in which an agency coerces or deceives an employee into accepting a new position. We need not consider those scenarios here. Mr. Williams alleges only that the Postal Service failed to advise him on the loss of appeal rights that would result from his reappointment as a CCA. We hold that the agency's failure to advise Mr. Williams does not allow him to retain appeal rights from a prior appointment.
C
Finally, Mr. Williams argues that the Board's decision to overturn Roden violated his due process rights. Specifically, Mr. Williams contends that he had a right to appeal as a federal employee based on the "continuing employment contract" theory in Roden . By overturning Roden and applying its decision retroactively, Mr. Williams asserts that the Board deprived him of his property right to appeal his termination.
We are not persuaded by Mr. Williams's due process challenge. Property rights "are created and their dimensions are defined by existing rules or understandings that stem from an independent source."
Bd. of Regents of State Colls. v. Roth
,
*1164 Because § 7511 only creates appeal rights for employees who have served continuously for more than one year, Mr. Williams relinquished any appeal rights he may have had at the RCA position when he accepted reappointment as a CCA. Thus, we find that the Board did not deprive Mr. Williams of his appeal rights when it dismissed his appeal for lack of jurisdiction.
III
For the reasons above, we affirm the Board's dismissal of Mr. Williams's and Mr. Winns's cases for lack of jurisdiction.
AFFIRMED
The statute uses the term "service," whereas OPM's regulation uses the term "employment." Despite this difference in terminology, we have treated OPM's regulation as interpreting the statutory term "current continuous service."
Wilder
,
Reference
- Full Case Name
- Derek T. WILLIAMS, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent United States Postal Service, Intervenor Harris L. Winns, Petitioner v. Merit Systems Protection Board, Respondent
- Cited By
- 30 cases
- Status
- Published