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United States Court of Appeals for the Federal Circuit
05-3203
FRANCES H. THOMPSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Frances H. Thompson, of Fort Washington, Maryland, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were Martha B. Schneider, General Counsel, and Rosa Koppel, Deputy General
Counsel.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
05-3203
FRANCES H. THOMPSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: January 3, 2006
__________________________
Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
NEWMAN, Circuit Judge.
Frances H. Thompson appeals the dismissal of her appeal for lack of jurisdiction.1
Ms. Thomson was an employee within that part of the judicial branch whose employees
have not been placed within the statutory jurisdiction of the Merit Systems Protection
1 Thompson v. Admin. Office of the U.S. Courts, No. DC0752040704-I-1
(M.S.P.B. October 14, 2004) (initial decision); (M.S.P.B. May 12, 2005) (final decision).
Board. Her prior employment within the executive branch does not provide the absent
jurisdiction. The dismissal of her appeal is affirmed.
DISCUSSION
Ms. Thompson was employed as a personnel specialist from December 4, 1989 to
March 3, 1995 by the United States Probation Office of the Federal Courts in the District of
Columbia, a part of the judicial branch. Prior to holding this position, Ms. Thompson was
employed in a personnel position from 1983 TO 1989 with the Department of Justice, a part
of the executive branch. The Probation Office terminated Ms. Thompson's employment on
March 3, 1995, on the ground of "lack of funds." She appealed to the MSPB on August 2,
2004, asserting several wrongs by the agency. The Board ordered Ms. Thompson to show
that she was an "employee" with right of appeal to the Board, as set forth in
5 U.S.C.
§7511(a)(1) (2000).2 Ms. Thompson responded that jurisdiction attached because of her
previous employment in a similar position with the executive branch.
Pursuant to
5 U.S.C. §7513(d), the MSPB is authorized to receive appeals for
"employees" in the following categories:
5 U.S.C. §7511(a)(1) "employee" means
(A) an individual in the competitive service --
(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) who has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or
less;
(B) a preference eligible in the excepted service who has completed 1 year
of current continuous service in the same or similar positions --
(i) in an Executive agency; or
2 The agency had also raised the issue of untimeliness, a ground not reached
by the Board.
05-3203 2
(ii) in the United States Postal Service or Postal Rate
Commission; and
(C) an individual in the excepted service (other than a preference eligible) --
(i) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive
service; or
(ii) who has completed 2 years of current continuous service in
the same or similar positions in an Executive agency under
other than a temporary appointment limited to 2 years or less.
The terms "competitive service" and "excepted service" are limited, with a few exceptions, to
positions in the executive branch.
5 U.S.C. §2102(a). See Hartman v. Merit Sys. Prot. Bd.,
77 F.3d 1378, 1380-81 (Fed. Cir. 1996) (judicial branch employee has no right of appeal to
the MSPB). Ms. Thompson was an employee of the district court, although her employment
papers and pay are identified as originating with the Administrative Office. Applying
Hartman,
77 F.3d at 1380, she has no right to appeal to the MSPB.
Ms. Thompson argues that she comes within subsection (C)(ii), supra, because she
served for more than two years in an Executive agency before her employment in the
judicial branch. However, that is not the agency from which she was terminated. The
statute cannot reasonably be read to provide ineligible employees of the judicial branch with
MSPB appeal rights because of earlier service in the executive branch.
The dismissal for lack of jurisdiction is
AFFIRMED.
05-3203 3
