Bobby Abernethy v. Patrick Donahoe ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1836
BOBBY R. ABERNETHY,
Plaintiff - Appellant,
v.
PATRICK DONAHOE, Postmaster General, US Postal Service,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Norman K. Moon, Senior
District Judge. (5:11-cv-30077-NKM-BWC)
Submitted: November 16, 2012 Decided: November 21, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Bobby R. Abernethy, Appellant Pro Se. David Lew, Rick A.
Mountcastle, Kartic Padmanabhan, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby R. Abernethy, a former employee of the United
States Postal Service (“USPS”), appeals the district court’s
order granting Defendant’s motion to dismiss his breach of
contract action. The district court dismissed Abernethy’s
complaint “based on the simple fact that . . . a federal statute
provides that, with narrow exceptions that are not applicable
here, USPS employees serve by appointment, and not by contract.”
Citing to 39 U.S.C. § 1001(b) (2006) (“Except as otherwise
provided in this title, the Postal Service shall appoint all
officers and employees of the Postal Service.”), and O’Neal v.
Donahoe, 802 F. Supp. 2d 709, 714 (E.D. Va. 2011) (collecting
cases wherein breach of employment contract actions against the
USPS were dismissed), the district court determined that “claims
that the USPS breached an employment contract are ‘necessarily
without merit.’” For the following reasons, we vacate and
remand to the district court.
Unlike the claim at issue in O’Neal, and regardless of
the fact that Abernethy was an appointed employee of the USPS,
Abernethy alleged the existence and breach of a contract
governing his compensation, rather than a contract governing his
employment duration. See O’Neal, 802 F. Supp. 2d at 714(collecting cases to support holding that “there is no
employment contract that can form the basis for a Postal
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employee’s breach of contract action against the Postal
Service[,]” where all of the cases involved an unlawful
discharge or failure to reinstate). It does not necessarily
follow that because Abernethy could have been terminated at any
time, the Defendant also had the right to alter his compensation
if, as Abernethy alleges, there was a valid contract on that
point.
Accordingly, we vacate the district court’s order and
remand the matter to the district court for further proceedings. *
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
*
By this disposition, we intimate no view as to the
appropriate resolution of Abernethy’s claim.
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