Harris L. Winns v. United States Postal Service , 2017 MSPB 1 ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2017 MSPB 1
Docket No. SF-0752-15-0165-M-1
Harris L. Winns,
Appellant,
v.
United States Postal Service,
Agency.
January 4, 2017
Harris L. Winns, San Jose, California, pro se.
Nina Paul, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 This appeal is before the Board after the U.S. Court of Appeals f or the
Federal Circuit granted the Board’s request to remand the case to the Board for
further consideration. Except as expressly MODIFIED by this Opinion and Order
to supplement the administrative judge’s jurisdictional analysis, we AFFIRM the
initial decision, issued in MSPB Docket No. SF-0752-15-0165-I-1, dismissing the
appeal for lack of jurisdiction.
BACKGROUND
¶2 The agency employed the preference‑eligible appellant in a series of four
temporary, time-limited appointments, beginning on December 3, 2011. Winns v.
2
U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Initial Appeal File
(IAF), Tab 8 at 5, Tab 10 at 1, Tab 14 at 22-28. Each appointment was for less
than a year, and they were separated by a break in service of at least several days.
IAF, Tab 14 at 22-28. Most recently, on February 6, 2014, following a 5-day
break in service, the agency appointed the appellant to a temporary Postal
Support Employee position. Id. at 22-23. Approximately 9 months later, before
that appointment expired, the agency terminated the appellant’s employment for
alleged misconduct. 1 Id. at 40, 51.
¶3 The appellant filed a Board appeal challenging his termination, and
alleged, among other things, that he was terminated in retaliation for
whistleblowing. IAF, Tab 1, Tab 12 at 24-26. He did not request a hearing.
IAF, Tab 1 at 2. Based on the written record, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID). He found
that the Board lacks jurisdiction over the appeal because the appellant failed to
raise a nonfrivolous allegation that he had completed 1 year of current continuous
service at the time that he was terminated. ID at 3-4. He further found that the
Board lacks jurisdiction over the appellant’s claims of whistleblower retaliation
because U.S. Postal Service employees are not entitled to seek corrective action
under 5 U.S.C. § 1221. 2 ID at 4.
1
The agency issued the appellant two separate termination notices based on different
alleged misconduct. IAF, Tab 14 at 40-43, 51-54. In the first notice, the agency stated
that the appellant would be separated effective November 7, 2014. Id. at 51. In the
second notice, the agency stated that he would be separated effective November 30,
2014. Id. at 40. It is not clear precisely when the appellant was separated from the
agency, but there is no suggestion that it was not in or around November 2014.
2
The administrative judge also found that, absent an otherwise appealable action, the
Board lacks jurisdiction over the appellant’s claims of discrimination and retaliation for
prior equal employment opportunity and union activities. ID at 4-5; see IAF, Tab 1
at 4-9, Tab 5 at 7-8, 14-20.
3
¶4 The appellant filed a petition for review of the initial decision . Winns v.
U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Petition for Review
(PFR) File, Tab 1. In pertinent part, for the first time on review, the appellant
argued that, although he held the appointment from which he was terminated for
less than a year, and had been appointed to the position following a break in
service, he nevertheless had Board appeal rights under the “continuing
employment contract” theory set forth in Roden v. Tennessee Valley Authority,
25 M.S.P.R. 363, 367-68 (1984). PFR File, Tab 1 at 13-14. In a May 7, 2015
Final Order, the Board denied the appellant’s petition for review, without
addressing his arguments regarding Roden. Winns v. U.S. Postal Service, MSPB
Docket No. SF-0752-15-0165-I-1, Final Order (May 7, 2015) (Final Order); PFR
File, Tab 8.
¶5 The appellant appealed the Board’s decision to the Federal Circuit.
Winns v. Merit Systems Protection Board, MSPB Docket No. SF-0752-15-0165-
L-2, Litigation File (LF), Tab 3. The Federal Circuit granted the Board’s request
to remand the appeal to the Board to consider whether Roden was still good law,
and if so, whether it would alter the Board’s determination that it lacks
jurisdiction over this appeal. Winns v. Merit Systems Protection Board,
No. 2016-1206, slip op. (Fed. Cir. Apr. 25, 2016); LF, Tab 8 at 1-5, Tab 11.
¶6 On remand, the Board issued an order directing the parties to address
whether Roden should be overruled in light of 5 C.F.R. § 752.402, a regulation
promulgated by the Office of Personnel Management (OPM) after Roden was
issued, which defines the term “current continuous employment.” Winns v. U.S.
Postal Service, MSPB Docket No. SF-0752-15-0165-M-1, Remand File (RF),
Tab 2. Both parties responded to the show cause order. RF File, Tabs 5-6.
ANALYSIS
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
4
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving by preponderant evidence that his appeal is within the Board’s
jurisdiction. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶8 Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Mathis v. U.S.
Postal Service, 865 F.2d 232 (Fed. Cir. 1988). Pursuant to 5 U.S.C.
§ 7511(a)(1)(B), which concerns preference-eligible employees in the excepted
service, an employee with the right to appeal to the Board includes a
preference-eligible U.S. Postal Service employee who has completed “1 year of
current, continuous service” in the same or similar positions. 4 5 U.S.C.
§ 7511(a)(1)(B)(ii); see 5 U.S.C. §§ 7511(b)(8); Mathis, 865 F.2d at 232-33. We
agree with the administrative judge that the dispositive issue in the instant appeal
is whether the appellant completed 1 year of “current continuous service” at the
time of his termination. 5 ID at 3-4.
¶9 Title 5 does not define “current continuous service.” In Roden, the Board
found that a preference-eligible employee who held a series of five temporary
appointments to the same position, separated by short breaks in service,
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
Employees of the U.S. Postal Service also may appeal adverse actions to the Board
under 5 U.S.C. chapter 75 if they are management or supervisory employees, or
employees engaged in personnel work in other than a purely nonconfidential clerical
capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Toomey v. U.S.
Postal Service, 71 M.S.P.R. 10, 12 (1996). The appellant has not alleged, and the
record does not reflect, that he was employed in any of these capacities. IAF, Tab 14
at 22-28.
5
The administrative judge did not make findings regarding whether the appellant’s
positions with the agency were the same or similar, and we find it unnecessary to do so
here, having found that the Board lacks jurisdiction over the appeal on the ground that
the appellant did not have 1 year of current continuous service at the time of
his termination.
5
established jurisdiction over his termination appeal, even though he held the
appointment from which he was terminated for less than a year. Roden,
25 M.S.P.R. at 364, 367-68. The Board found that, even assuming that
section 7511(a)(1)(B) generally excluded service that was interrupted by a break
in service of 2 workdays, it was obligated to look beyond the form of statutory
and other provisions, and to determine the purpose which these provisions were
intended to serve. Roden, 25 M.S.P.R. at 367. The Board found that, under the
circumstances at issue, the agency had effectively entered into a continuing
employment contract with the employee, and therefore, despite several breaks, his
service was “continuous” within the meaning of section 7511(a)(1)(B). Roden,
25 M.S.P.R. at 368. Having resolved the appeal on other grounds, the Board
declined to address whether guidance in versions of OPM’s Federal Personnel
Manual (FPM) in effect at the time interpreted the “current continuous service”
requirement in section 7511(a)(1)(B) as precluding breaks in service of a
workday. 6 Roden, 25 M.S.P.R. at 365 n.3, 367.
¶10 Approximately 3 and a half years after the Board issued Roden, OPM
promulgated 5 C.F.R. § 752.402, a regulation that defines “current continuous
employment.” See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,620 (June 9,
1988); see also Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322
(Fed. Cir. 2012). Although 5 C.F.R. § 752.402 refers to “current continuous
employment,” rather than “current continuous service,” the appellant does not
6
The relevant versions of the FPM contained seemingly conflicting guidance regarding
this issue. In pertinent part, the 1980 version of the FPM stated, “[c] urrent continuous
employment in a position outside the competitive service may be either employment in
one position without a break of a workday or employment in more than one position in
the same line of work without a break of a workday. ” Roden, 25 M.S.P.R. at 365 n.3.
However, the same section also stated that “employment is credited for this purpose in
the same manner that it is credited toward completion of a probationary period,” which
would permit a break in service of up to 30 days. Id. at 365 & n.3. In 1984, the FPM
was revised to clarify that the 30-day criterion applied to the excepted service, as well
as the competitive service. Id. at 365.
6
dispute that the regulation was enacted to implement 5 U.S.C. chapter 75, and
applies to 5 U.S.C. § 7511(a)(1)(B). 7 RF, Tab 6; see also Wilder, 675 F.3d
at 1322 n.1; Other Than Full-Time Career Employment and Adverse Actions,
52 Fed. Reg. 9,867-01, 9,867-68 (Mar. 27, 1987).
¶11 In its current iteration, 5 C.F.R. § 752.402 provides that “[c]urrent
continuous employment means a period of employment or service immediately
preceding an adverse action without a break in Federal civilian employment of a
workday.” 8 The regulation does not provide for an exception to the requirement
that the service be without a break of a workday in the cases of a “continuing
employment contract,” or any other circumstances. See 5 C.F.R. § 752.402.
¶12 In OPM’s published response to comments regarding 5 C.F.R. § 432.103, a
proposed regulation pertaining to performance-based actions under 5 U.S.C.
chapter 43, OPM made clear that 5 C.F.R. § 752.402 precludes the “continuing
employment contract” theory set forth in Roden. See Reduction in Grade and
Removal Based on Unacceptable Performance, 54 Fed. Reg. 26,172-01, 26,174
(June 21, 1989). A union recommended that OPM revise the proposed definition
of “current continuous employment” in 5 C.F.R. § 432.103, which was
substantially similar to the definition in 5 C.F.R. § 752.402, to provide for a
continuing employment contract theory, consistent with Roden. See Reduction in
7
Prior to the enactment of the 1990 Civil Service Due Process Amendments, Pub. L.
No. 101-376, 104 Stat. 461, 5 U.S.C. § 7511(a)(1)(A), a provision of section 7511(a)(1)
not at issue in the instant appeal referred to “current continuous employment,” rather
than “current continuous service.” See Civil Service Reform Act of 1978, Pub. L.
No. 95-454, 92 Stat. 1111; Wilder, 675 F.3d at 1322 n.1.
8
At the time that 5 C.F.R. § 752.402 was promulgated, the regulation defined “current
continuous employment” as “a period of employment or service immediately preceding
an adverse action in the same or similar positions without a break in Federal civilian
employment of a workday.” See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,623
(June 9, 1988). In a 2008 amendment to 5 C.F.R. § 752.402, OPM deleted the reference
to “the same or similar positions.” See Career and Career-Conditional Employment and
Adverse Actions, 73 Fed. Reg. 7,187-01, 7,188 (Feb. 7, 2008).
7
Grade and Removal Based on Unacceptable Performance, 54 Fed. Reg.
26,172-01, 26,174 (June 21, 1989). OPM declined to do so, explaining that its
FPM guidance in effect at the time that Roden was issued:
was superseded by [5 C.F.R. § 752.402[] 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. Since the definition
suggested by the union for Part 432 is not consistent with established
policy, OPM has not adopted the suggestion. 9
Id. Thus, under 5 C.F.R. § 752.402, neither the employee’s service in Roden, nor
the appellant’s service at issue in the instant appeal, qualify as “current
continuous service.”
¶13 Congress has expressly authorized OPM to prescribe regulations
implementing 5 U.S.C. chapter 75. 5 U.S.C. § 7514; Wilder, 675 F.3d at 1322.
For this reason, and because OPM promulgated 5 C.F.R § 752.402 following
notice and comment procedures, we review OPM’s interpretation of
section 7511(a)(1)(B) under the 2‑step analytical framework articulated in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837,
842-43 (1984). See Wilder, 675 F.3d at 1322; Jonson v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 454, ¶ 15 (2015); Preyor v. U.S. Postal
Service, 83 M.S.P.R. 571, ¶ 11 (1999). First, we must determine “whether
Congress has directly spoken to the precise question at issue ”; if so, we “must
give effect to the unambiguously expressed intent of Congress.” Chevron,
467 U.S. at 842-43. If the statute is silent or ambiguous concerning the question
at issue, the inquiry proceeds to an analysis of whether the agency’s
9
OPM also erroneously stated that the Board decision in Roden “was based, in large
part” on the guidance in the FPM. Id. In fact, as discussed previously, in Roden, the
Board declined to address whether to afford deference to the FPM guidance.
25 M.S.P.R. at 365 & n.3, 367. However, this error is of no consequence because the
pertinent inquiry is OPM’s interpretation of section 7511(a)(1)(B), the relevant statute,
not OPM’s interpretation of the Board’s rationale for its decision in Roden.
8
interpretation is based on a permissible construction of the statute. Id. at 843. If
so, the Board must defer to the agency’s interpretation. Id.; Day v. Department of
Homeland Security, 119 M.S.P.R. 589, ¶ 26 (2013).
¶14 The fact that title 5 does not define “current continuous service,” standing
alone, does not necessarily render the statute silent or ambiguous. See Gardner v.
Brown, 5 F.3d 1456, 1459 (Fed. Cir. 1993) (finding that “Congress is not required
to define each and every word in a piece of legislation in order to express clearly
its will”), aff’d, 513 U.S. 115 (1994). The Board may refer to dictionary
definitions to determine the ordinary meaning of an undefined statutory term.
See Information Technology & Applications Corporation v. United States,
316 F.3d 1312, 1320 (Fed. Cir. 2003). The Merriam Webster Collegiate
Dictionary defines “continuous” as “marked by uninterrupted extension in space,
time, or sequence.” Merriam Webster Collegiate Dictionary 250 (10th ed. 2002).
Similarly, Webster’s II New Riverside University Dictionary defines
“continuous” as “uninterrupted” or “unbroken.” Webster’s II New Riverside
University Dictionary 305 (1984). Thus, the ordinary meaning of “current
continuous service” appears to preclude breaks in service.
¶15 Moreover, the legislative history of the Civil Service Reform Act of 1978
(CSRA), which enacted 5 U.S.C. chapter 75, does not preclude the Board from
interpreting the phrase “current continuous service” in section 7511(a)(1)(B)
according to its plain meaning. See S. Rep. No. 95-969 (1978), reprinted in 1978
U.S.C.C.A.N. 2723; H.R. Conf. Rep. 95-1717 (1978), reprinted in 1978
U.S.C.C.A.N. 2860; see also Pirkkala v. Department of Justice, 123 M.S.P.R.
288, ¶ 7 (2016) (finding that, when statutory language is clear, it must control
absent clearly expressed legislative intent to the contrary). Instead, the Senate
Committee Report states that “[t]he phrase ‘one year of current continuous
service . . . ,’ which defines the extent of coverage of employees in the excepted
service, is intended to be the same as that currently used in civil service
regulations.” S. Rep. No. 95-969, reprinted in 1978 U.S.C.C.A.N. 2723, 2770.
9
At the time that the CSRA was enacted, although the civil service regulations
themselves did not define “current continuous service,” the meaning of that
phrase, as used in those regulations, was set forth in the 1978 version of the FPM,
which provided:
Current continuous employment in a position outside the compet itive
service may be either (i) employment in one position without a break
of a workday or (ii) employment in more than one position in the
same line of work without a break of a workday.
Mathis, 865 F.2d at 234; Weinberger v. U.S. Postal Service, 4 M.S.P.R. 330, 332
(1980). Thus, interpreting the “current continuous service” requirement in
section 7511(a)(1)(B) in accordance with the plain meaning of the term
“continuous” appears consistent with the intent of Congress.
¶16 Even if we were to find that Congress had not expressed its intent on this
matter, however, or that its purpose and intent is unclear, we would find that
OPM’s interpretation in 5 C.F.R. § 752.402 is based on a permissible
construction of the statute and afford Chevron deference to it. 10 As the agency
charged with promulgating regulations to implement 5 U.S.C. chapter 75, OPM’s
interpretation of a statutory term governs if it is a reasonable interpretation of the
statute—not necessarily the only possible interpretation, nor even the
interpretation deemed most reasonable by the Board. See Entergy Corporation v.
Riverkeeper, Inc., 556 U.S. 208, 218 (2009); Day, 119 M.S.P.R. 589, ¶ 26. Here,
because OPM’s definition of “current continuous service” is in accordance with
the plain meaning of “continuous” and the legislative history of the CSRA, we
find that it is both reasonable and consistent with the statute. 11
10
In contrast, OPM’s FPM guidance in effect during the time period at issue in Roden
was not subject to notice and comment rulemaking, and would not be afforded Chevron
deference. See Knapp v. Department of Commerce, 24 M.S.P.R. 605, 609 n.2 (1984).
11
We have considered the appellant’s argument that the definition of current continuous
employment in 5 C.F.R. § 752.402 is unreasonable because it differs from the 30-day
break in service permitted for purposes of tacking on prior service to complete a
10
¶17 In addition, Roden was incorrectly decided to the extent that it found that
an appellant can establish Board jurisdiction based on a “continuing employment
contract” theory, regardless of whether he falls within the definition of an
employee with Board appeal rights under the applicable statute. See Roden,
25 M.S.P.R. at 367-68. “The Board’s jurisdiction is strictly limited to that
provided by statute, rule, or regulation,” and with respect to adverse action
appeals under 5 U.S.C. chapter 75, “that jurisdiction only encompasses appeals
by ‘employees’ as defined in section 7511(a)(1).” Hartman v. Merit Systems
Protection Board, 77 F.3d 1378, 1380 (Fed. Cir. 1996). The parties cannot
confer jurisdiction by a contract or agreement where none otherwise exists. See
Metzenbaum v. General Services Administration, 96 M.S.P.R. 104, ¶ 9 (2004).
¶18 For the reasons set forth above, we overrule the Board’s decision in Roden.
Further, we overrule subsequent decisions relying on Roden to find that an
appellant may establish “current continuous service” for purposes of
section 7511(a)(1)(B) under a “continuing employment contract” theory, despite a
break in service of a workday, including: Melvin v. U.S. Postal Service,
79 M.S.P.R. 372, ¶¶ 5-6 (1998); Bradley v. U.S. Postal Service, 69 M.S.P.R. 595,
597-99 (1996); and Hayes v. U.S. Postal Service, 36 M.S.P.R. 622, 625 (1988). 12
¶19 Finally, we discern no basis to disturb our findings in the prior final order
that: (1) the Board otherwise lacks jurisdiction over the appeal under 5 U.S.C.
chapter 75; (2) the Board lacks jurisdiction over the appellant’s whistleblower
probationary or trial period. RF, Tab 6 at 10. We find this argument unpersuasive.
The Board has held that the 30-day rule applicable to tacking service to determine
whether an individual has completed a trial or probationary period does not apply when
determining whether prior service may be counted toward the applicable current
continuous service requirement under 5 U.S.C. § 7511(a)(1). Maibaum v. Department
of Veterans Affairs, 116 M.S.P.R. 234, ¶ 14 (2011).
12
In both Bradley, 69 M.S.P.R. at 597-99, and Hayes, 36 M.S.P.R. at 625, the Board
agreed with the rule set forth in Roden, but found that it did not apply under the
particular facts of the case.
11
reprisal claims; and (3) absent an otherwise appealable action, the Board lacks
jurisdiction over the appellant’s other claims of retaliation and discrimination.
Final Order at ¶¶ 5-6; PFR File, Tab 8 at 4-5. Accordingly, we adopt these
findings herein. For the reasons set forth above, we affirm the initial decision, as
modified, to supplement the administrative judge’s jurisdictional analysis, and to
find that Roden and subsequent decisions relying on the “continuing employment
contract” theory articulated in Roden are no longer good law.
ORDER
¶20 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must subm it your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
12
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.