Reddick v. Fdic , 809 F.3d 1253 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY REDDICK,
Petitioner
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent
______________________
2014-3188
______________________
Petition for review of arbitration decision by Robert
M. Hirsch No. H13-024.
______________________
Decided: January 8, 2016
______________________
PARAS NARESH SHAH, National Treasury Employees
Union, Washington, DC, argued for petitioner. Also
represented by GREGORY O’DUDEN, JULIE M. WILSON,
LARRY JOSEPH ADKINS.
JAMES R. SWEET, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
CLAUDIA BURKE, ROBERT E. KIRSCHMAN, JR., JOYCE R.
BRANDA.
______________________
2 REDDICK V. FDIC
Before REYNA, SCHALL, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Timothy Reddick served in a term appointment with
the Federal Deposit Insurance Corporation. The FDIC
offered to extend the term appointment, which
Mr. Reddick accepted. Prior to the start of the extended
portion of the term appointment, the FDIC revoked the
already-accepted offer. The issue is whether the revoca-
tion constituted a “removal” under 5 U.S.C. § 7512. An
arbitrator ruled in favor of the FDIC. We agree and
dismiss the appeal. We hold that the extension offer was
still revocable by the FDIC even after acceptance by
Mr. Reddick. Therefore, the offer of extension never
matured into an effective extension, so Mr. Reddick was
not “removed” from that prospective extension.
I
Mr. Reddick was employed as an “Investigation Spe-
cialist” with the FDIC in an initial two-year term ap-
pointment. The initial term began in September 2010
and was set to expire in September 2012.
Before the expiration of the initial term, the FDIC of-
fered Mr. Reddick an extension of the initial term for an
additional two years. This extension term was set to
begin in September 2012. The extension offer stated that
the “extended employment” would be “effective [Septem-
ber], 2012” and that the “extended appointment is subject
to the conditions of employment [included in the initial
appointment offer] and subject to your continued success-
ful performance.” J.A. 31. The extension offer was made
in April 2012, and Mr. Reddick accepted it several days
after receipt.
For reasons not germane to this appeal, the FDIC re-
voked the extension offer in August 2012. As is evident,
but nonetheless highlighted here for its significance, this
REDDICK V. FDIC 3
revocation occurred after acceptance of the extension offer
but prior to the beginning of the extension term. As a
result, Mr. Reddick’s employment with the FDIC ended
when the initial term expired in September 2012.
Mr. Reddick filed a grievance with the FDIC on the
theory that the revocation of the extension offer was an
adverse action under 5 U.S.C. § 7512. If Mr. Reddick’s
allegation were true, then he would have been entitled to
the procedural protections of 5 U.S.C. § 7513, which the
FDIC did not provide him. But the FDIC disagreed with
Mr. Reddick, and the matter was referred to arbitration
under the terms of a collective bargaining agreement.
The arbitrator found the revocation justified and en-
tered disposition for the FDIC. The arbitrator found the
extension offer to be conditional in nature, namely, condi-
tioned on Mr. Reddick’s “satisfactory work performance.”
J.A. 18–19. And, the arbitrator found Mr. Reddick’s
allegedly improper conduct—which led to the revocation
but is not at issue in this appeal—to be “highly question-
able behavior” and sufficient justification for the FDIC’s
decision to end its relationship with Mr. Reddick. Id. at
19–20. Because the extension offer was conditioned on
satisfactory performance and Mr. Reddick had not so
performed, the arbitrator found the revocation justified
and thereby denied Mr. Reddick’s grievance.
Mr. Reddick appeals to this court.
II
The Civil Service Reform Act of 1978 provides a com-
prehensive personnel system with extensive prescriptions
for the protections and remedies available to federal
employees. See United States v. Fausto, 484 U.S. 439, 443
(1988); Lindahl v. Office of Pers. Mgmt., 470 U.S. 768,
773–74 (1985). For the typical nonpreference eligible
federal employee, independent administrative and judicial
review is only available for major adverse actions as
4 REDDICK V. FDIC
defined in 5 U.S.C. § 7512, first to the Merit Systems
Protection Board and subsequently to this court. For
minor adverse actions not covered by § 7512, an employee
generally can only seek whatever internal remedies are
available in the employing agency. 1
For employees who are covered by a collective bar-
gaining agreement, like Mr. Reddick, additional remedies
may be afforded by the collective bargaining agreement.
For instance, an employee may be able to file a grievance
and submit a dispute to an arbitrator. The matters
subject to such a grievance-resolution procedure and
arbitration are defined by the collective bargaining
agreement and are not necessarily limited to only those
adverse actions covered by § 7512. However, judicial
review of an arbitrator’s decision by this court is still
limited to only those adverse actions covered by § 7512.
See 5 U.S.C. § 7121(f); see also Schafer v. Dep’t of Interior,
88 F.3d 981, 984–85 (Fed. Cir. 1996). Thus, while
Mr. Reddick may have been able to submit his dispute
over the cancellation of his term extension to the arbitra-
tor under his collective bargaining agreement, we only
possess jurisdiction if Mr. Reddick was removed from his
position within the meaning of § 7512.
It is well-established that the failure to appoint is not
an adverse action. See Prewitt v. Merit Sys. Prot. Bd., 133
F.3d 885, 886 (Fed. Cir. 1998). Likewise, the expiration of
a term appointment or a non-renewal of a term appoint-
ment at the term’s expiration is also not an adverse
action. See Mittapalli v. United States, 229 Ct. Cl. 479,
1 In some circumstances, inapplicable here, an em-
ployee can pursue remedies for actions not covered by 5
U.S.C. § 7512 under the provisions established by the
Whistleblower Protection Act. See generally 5 U.S.C.
§ 2302(b)(8); see also Fields v. Dep’t of Justice, 452 F.3d
1297, 1302 (Fed. Cir. 2006).
REDDICK V. FDIC 5
481 (1981). However, the removal of an employee during
a term appointment may qualify as a removal under
§ 7512. See, e.g., Cunningham v. Dep’t of Veterans Affairs,
86 M.S.P.R. 519, 523 (2000); Youngs v. Dep’t of the Army,
73 M.S.P.R. 551, 559 (1997).
Our jurisdiction in this case therefore depends on
whether Mr. Reddick’s employment was terminated at the
end of his term appointment, as the FDIC contends, or
during his extended term, as he argues. And the answer
to that question depends on the narrow issue of whether,
under the facts of this case, Mr. Reddick’s term appoint-
ment was irrevocably extended by his acceptance of the
FDIC’s offer, or whether the FDIC could revoke that offer
prior to the effective date.
We conclude that the FDIC could revoke the extension
offer notwithstanding Mr. Reddick’s acceptance thereof.
First, the terms of the extension offer suggest that it
was not intended to become irrevocably effective upon
acceptance by Mr. Reddick. The extension offer refers to
“extended employment under a Term Appointment with
the [FDIC] for an additional period of 24 months, effective
[September] 2012.” In other words, the “extended em-
ployment” would become effective in September 2012, i.e.,
not immediately upon acceptance by Mr. Reddick. The
effective date language reasonably suggests that the
extension term would be effective, entitling Mr. Reddick
to the benefits of that position, upon the specified date in
September 2012. As such, the stated effective date
weighs in favor of finding that the FDIC could revoke the
extension offer prior to Mr. Reddick beginning the exten-
sion term in September 2012.
Second, the lack of execution of formal documentation
of the term extension, i.e., the SF-52/50, supports the
conclusion that the term extension had not yet become
effective when revoked by the FDIC. The SF-52, “Request
for Personnel Action,” and SF-50, “Notification of Person-
6 REDDICK V. FDIC
nel Action,” constitute the standard forms for the federal
government to initiate and document personnel actions,
respectively. Our court’s predecessor held that the execu-
tion of the SF-52 “is the sine qua non to plaintiff’s ap-
pointment.” Goutos v. United States, 552 F.2d 922, 924
(Ct. Cl. 1976). In Goutos, the court held that the effectu-
ating act in appointing the individual to the contested
position would have been the signing of the SF-52 by the
appropriate manager in the Department of the Army. See
id. at 924–25. Because the SF-52 was never signed de-
spite repeated requests and over two years of service in
the contested position, the court held that no appointment
had been made. See id. at 923–25. In Monaco, this court
similarly held that the last act needed to effectuate the
appointment was signing of the SF-52 by the appropriate
manager within the IRS. See Monaco v. United States, 66
F.3d 346 (Fed. Cir. 1995) (unpublished opinion). In
Skalafuris, our predecessor court looked to the SF-52 and
SF-50 as the primary evidence of when the employee’s
appointment became effective. See Skalafuris v. United
States, 683 F.2d 383, 385–87 (Ct. Cl. 1982).
An SF-52/50 may not be necessary in every circum-
stance to conclude that an appointment has occurred.
See, e.g., Nat’l Treasury Emps. Union v. Reagan, 663 F.2d
239, 243 (D.C. Cir. 1981). But given the importance that
precedent places on the significance of the SF-52 and SF-
50 in the appointment process, see Goutos, 552 F.2d at
924, see also Vukonich v. Civil Serv. Comm’n, 589 F.2d
494, 496 (10th Cir. 1978), we find the lack of an SF-52 or
SF-50 to have considerable weight in determining wheth-
er the FDIC actually did extend Mr. Reddick’s appoint-
ment.
Here, the FDIC did not execute an SF-52 and
Mr. Reddick did not receive an SF-50 for the term exten-
sion. The FDIC explains that it was the practice of the
agency to issue an SF-50 for an extension term only after
the initial term had expired. Given the FDIC’s practice of
REDDICK V. FDIC 7
issuing the SF-50 only after completion of the initial term,
and given the effective date provision included in the
extension offer, it is reasonable to interpret the extension
offer as establishing the plan for an extension term, which
would only become effective upon execution of the SF-52
or issuance of the SF-50.
Based on the language of the extension offer and the
lack of the SF-52/50, we find that the extension offered to
Mr. Reddick and accepted by him had not become effec-
tive when the FDIC revoked the extension offer in August
2012. As a result, the FDIC’s revocation did not consti-
tute a “removal” of Mr. Reddick from the extension term
within the meaning of § 7512.
To the extent that Mr. Reddick argues that the revo-
cation of the extension offer itself constitutes a removal,
that argument lacks merit. It would be conceptually no
different from a withdrawn offer of employment prior to
appointment, which we have held is not an appealable
adverse action, see Miller v. Merit Sys. Prot. Bd., 794 F.2d
660, 661 (Fed. Cir. 1986).
III
We conclude that the revocation of the extension offer
by the FDIC did not constitute a “removal” under § 7512.
Thus, this court lacks jurisdiction over Mr. Reddick’s
appeal. Accordingly, the present appeal is dismissed.
DISMISSED
No costs.