Holmes v. MSPB , 655 F. App'x 816 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA J. HOLMES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1551
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-16-0076-I-1.
______________________
Decided: July 8, 2016
______________________
PAMELA J. HOLMES, Montgomery, AL, pro se.
CALVIN M. MORROW, Office of the General Counsel,
Merits Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before NEWMAN, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
2 HOLMES v. MSPB
Pamela J. Holmes (“Holmes”) seeks review of the Mer-
it Systems Protection Board’s (“the Board”) decision
dismissing her appeal for lack of jurisdiction without a
hearing. Holmes v. Dep’t of Commerce, PH-0752-16-0076-
I-1, 2015 WL 8971876 (M.S.P.B. Dec. 10, 2015). Specifi-
cally, the Board found that Holmes was not an employee
under the relevant statute and, as such, did not have
jurisdiction to appeal an adverse action to the Board. For
the reasons explained below, we affirm.
BACKGROUND
Holmes was appointed to a full-time position in the
competitive service as a Supervisory Survey Specialist for
the Department of Commerce’s (“the agency”) Bureau of
the Census, Philadelphia Regional Office, on December
15, 2014 for a term that was “NTE [not to exceed]
12/12/15.” Standard Form (“SF”) 50, Notification of
Personnel Action, Joint Appendix (“J.A.”) 14. The SF-50
that notified Holmes of her new position explicitly noted
that the “position is temporary.” Id. And, further, that
“temp employees serve under appts limited to 1 year or
less & are subject to termination at any time w/o use of
adverse or reduction-in-force procedures.” Id.
Prior to her temporary employment at the agency,
Holmes served as a Medical Support Assistant for the
Department of the Army for a number of years. See
Holmes, 2015 WL 8971876, n.4. There was a ten day gap
between her employment with the Department of the
Army and her temporary appointment with the Depart-
ment of Commerce. Id. On October 26, 2015, Holmes was
issued a notice of termination, indicating that her em-
ployment with the agency would be terminated on Octo-
ber 30, 2015 “due to unacceptable conduct.” J.A. 16. In
particular, the notice pointed to Holmes’ alleged “failure
to pay [her] Government-Issued Credit Card.” Id. Be-
cause it was not “in the best interest of the government to
retain [her] in the Federal service,” and in order “to
HOLMES v. MSPB 3
promote the efficiency of the service,” the Assistant Re-
gional Director terminated her employment. Id.
Holmes timely appealed the termination action to the
Board, which issued an Order to Show Cause why the
case should not be dismissed for lack of jurisdiction. See
Holmes, 2015 WL 8971876. Holmes responded that the
Board had jurisdiction under 28 U.S.C. § 1331 and 42
U.S.C. § 1983. Id. She also challenged the stated reason
for why the agency removed her in the first place, claim-
ing “that the agency did not apply the Douglas Factors
and violated her due process rights under the Fifth and
Fourteenth Amendments of the United States Constitu-
tion.” Id. She also requested a jury trial. Id. The agency
responded that the Board “lacked jurisdiction under
Chapter 75 because the petitioner did not meet the defini-
tion of an ‘employee’ in 5 U.S.C. § 7511.” Appellee Br. 3.
On December 10, 2015, the administrative judge is-
sued its initial decision, agreeing with the agency that the
Board lacked jurisdiction over the action because the
petitioner did not meet the applicable definition of an
‘employee’ in 5 U.S.C. § 7511(a)(1). [JA3–4.] In particu-
lar, the administrative judge found that Holmes’ “tempo-
rary position . . . does not satisfy the definition of an
employee pursuant to § 7511(a)(1)(A)(i),” and that
“[n]either 28 U.S.C. § 1331 nor 42 U.S.C. § 1983 provides
an independent source of Board jurisdiction.” [JA4–5.]
The administrative judge, therefore, dismissed the ap-
peal.
Because neither party filed a petition for review, the
administrative judge’s initial decision became the final
decision of the Board on January 14, 2016. Holmes timely
4 HOLMES v. MSPB
petitioned this court for review, 1 and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
By regulation, the petitioner bears the burden of prov-
ing that the Board has jurisdiction. 5 C.F.R.
§ 1201.56(b)(2)(i)(A); see Lazaro v. Dep’t of Veterans Af-
fairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012). The jurisdic-
tion of the Board is not plenary, but is “limited to those
areas specifically granted by statute or regulation.”
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327
(Fed. Cir. 2006) (quoting Antolin v. Dep’t of Justice, 895
F.2d 1395, 1396 (Fed. Cir. 1989)).
The term “employee” is the statutory trigger for an
appeal to the Board from an adverse action, such as a
disciplinary removal, and is defined in 5 U.S.C.
§ 7511(a)(1). That statute defines the term “employee” as
“(A) an individual in the competitive service (i) who is not
serving a probationary or trial period under an initial
appointment; or (ii) . . . who completed 1 year of current
continuous service under other than a temporary ap-
pointment limited to 1 year or less.”
Holmes does not qualify as an employee under
§ 7511(a)(1). She does not meet the requirements of the
§ 7511(a)(1)(A)(ii) because she is a temporary employee
who has served less than one year. And, although she
meets the literal terms of § 7511(a)(1)(A)(i), she is “an
individual in the competitive service who [wa]s not serv-
ing a probationary or trial period under an initial ap-
pointment,” we have held that a literal reading
1 Holmes filed a supplemental brief and memoran-
dum requesting oral argument on June 14, 2016. App.
Pet. 16-1551, ECF No. 19. Although late-filed, we consid-
er the arguments made therein for purposes of this ap-
peal, though we did not grant oral argument.
HOLMES v. MSPB 5
interpreting A(i) to cover temporary employees “would
render [A(ii)] superfluous and thus violate the rule of
construction that a statute should not be interpreted in a
way that renders one of its parts inoperative.” Forest v.
Merit Sys. Prot. Bd., 47 F.3d 409, 412 (Fed. Cir. 1995)
(discussing the analogous section 5 U.S.C. § 7511(a)(1)(C),
which applies to individuals in the excepted service,
instead of the competitive service, as here, which is gov-
erned by 5 U.S.C. § 7511(a)(1)(A)); see also Antolin, 895
F.2d at 1397 (“Under the plain language of the statute,
even when an individual serves a series of temporary
appointments of one year or less, that individual does not
become an employee for the purpose of § 7511(a)(1).”);
Horner v. Lucas, 832 F.2d 596, 597 (Fed. Cir. 1987) (“To
be an ‘employee’ the statute mandates that [the appel-
lant] be serving in continuous employment in a non-
temporary appointment at the time of the adverse ac-
tion.”)
The Board has similarly held that “a temporary ap-
pointee who lacks the requisite length of service to satisfy
subsection (A)(ii) does not have adverse action appeal
rights merely because he or she meets the literal terms of
subsection (A)(i).” Johnson v. Dep’t of Veterans Affairs,
No. PH-0752-04-0193-I-1, 2005 WL 1999582 (M.S.P.B.
Aug. 12, 2005). See also Fish v. Dep’t of the Navy, 29
M.S.P.R. 595, 598 (1986) (appellant did not meet the
definition of an “employee” even though he had eight
consecutive temporary appointments of one year or less).
Holmes argues that her previous experience with the
Department of the Army satisfies the requirements of the
statute as she has “exceeded 3 years of Federal Service
successfully and meets the definition of a federal service
employee.” Appellant Br. 4. But “[p]revious service in a
non-temporary post, which is followed by new temporary
positions, is irrelevant under the statute.” Horner, 832
F.2d at 597. Moreover, the Office of Personnel Manage-
ment (“OPM”) guidelines define current continuous em-
6 HOLMES v. MSPB
ployment as: “a period of employment or service immedi-
ately preceding an adverse action in the same or similar
positions without a break in Federal civilian employment
of a workday.” 5 C.F.R. § 752.402(b) (emphasis added).
Holmes’ 10-day hiatus between working for the Depart-
ment of the Army and commencing her term at the De-
partment of Commerce renders her ineligible for current
continuous employment status. Because Holmes’ current-
ly appeals from an adverse action taken against her as a
temporary employee who has served for less than one
year, the Board does not have jurisdiction to hear Holmes’
complaint.
Finally, as before the administrative judge, Holmes
raises a number of additional concerns before this court.
These include the administrative judge’s failure to consid-
er the twelve Douglas factors, see Douglas v. Veterans
Admin., 5 M.S.P.R. 280 (1981), her due process rights
under the Fifth and Fourteenth Amendments, and the
OPM Guidelines. But because the Board lacks jurisdic-
tion to hear Holmes’ petition, we cannot address the
merits of these arguments.
CONCLUSION
Holmes appeals the Board’s dismissal of her petition
for lack of jurisdiction. Because we agree that the Board
does not have jurisdiction, we affirm.
AFFIRMED
COSTS
No costs.