Williams v. Merit Sys. Prot. Bd. , 892 F.3d 1156 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
DEREK T. WILLIAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2017-1535
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-15-0530-M-1.
---------------------------------------------------------------------------
HARRIS L. WINNS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1663
______________________
2 WILLIAMS v. MSPB
Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0165-M-1.
______________________
Decided: June 11, 2018
______________________
PAUL MICHAEL SCHOENHARD, McDermott, Will &
Emery LLP, Washington, DC, argued for petitioner in
2017-1535. Also represented by REBECCA HARKER
DUTTRY, NICOLE JANTZI, ELIZABETH LOUISE BURKE TETER.
HARRIS L. WINNS, San Jose, CA, pro se, in 2017-1663.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, argued for
respondent in 2017-1535. Also represented by BRYAN G.
POLISUK, KATHERINE M. SMITH, JEFFREY A. GAUGER.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent in 2017-1663. Also represented by BRYAN G.
POLISUK, KATHERINE M. SMITH.
MOLLIE LENORE FINNAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for intervenor in 2017-
1535. Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., REGINALD T. BLADES, JR.; NADIA K.
PLUTA, Office of General Counsel, United States Office of
Personnel Management, Washington, DC; MORGAN E.
REHRIG, Office of General Counsel, United States Postal
Service, Washington, DC.
______________________
Before DYK, HUGHES, and STOLL, Circuit Judges.
WILLIAMS v. MSPB 3
HUGHES, Circuit Judge.
Derek Williams and Harris Winns, both former em-
ployees of the United States Postal Service, were removed
from their positions at the agency. They both separately
sought review of their removals by the Merit Systems
Protection Board. Only certain federal employees, as
defined by statute, however, can seek review at the Board.
And in this case, the Board held that neither individual
qualified as an “employee” with appeal rights under 5
U.S.C. § 7511(a)(1)(B)(ii). Because we agree with the
Board’s interpretation of § 7511, we affirm its dismissal of
Mr. Williams’s and Mr. Winns’s respective cases.
As an alternative basis for Board jurisdiction, Mr.
Williams contends that he retained appeal rights from a
prior appointment because the U.S. Postal Service did not
advise him on the loss of appeal rights that would result
from his reappointment to a new position. We hold that
an agency’s failure to advise individuals on the potential
loss of their appeal rights cannot create Board jurisdic-
tion. Accordingly, we also affirm the Board’s decision that
Mr. Williams did not retain appeal rights from his prior
appointment.
I
A
Mr. Winns is a preference-eligible veteran who
worked at the Postal Service. Starting in 2011, Mr.
Winns served a series of time-limited appointments, each
lasting for less than a year. He was last appointed as a
Postal Support Employee, which he started after a five-
day break from a previous appointment. Mr. Winns was
removed for alleged misconduct before he served a full
year as a Postal Support Employee.
Mr. Winns appealed his termination to the Board and
asserted whistleblower retaliation. The Board dismissed
his appeal for lack of jurisdiction because Mr. Winns had
4 WILLIAMS v. MSPB
not completed one year of “current continuous service,”
and so did not qualify as an “employee” under
§ 7511(a)(1)(B)(ii). Mr. Winns appealed the dismissal to
this court, where he argued that the Board’s decision
contradicted Roden v. Tennessee Valley Authority, 25
M.S.P.R. 363 (1984). In Roden, the Board held that an
individual who worked in a series of temporary appoint-
ments could qualify as an “employee” under § 7511 based
on a “continuing employment contract” theory. Id. at
367–68.
In response, the Board requested remand to consider
whether Roden was still good law. We granted the
Board’s request. Winns v. Merit Sys. Prot. Bd., No. 16-
1206 (Fed. Cir. Apr. 25, 2016), ECF No. 25. On remand,
the Board held that the Office of Personnel Management’s
(OPM) regulations superseded Roden and abrogated the
“continuing employment contract” theory. Winns v. U.S.
Postal Serv., 124 M.S.P.R. 113, 117–21 (2017). The Board
noted that 5 C.F.R. § 752.402 defines “current continuous
employment” as “a period of employment or service im-
mediately preceding an adverse action without a break in
Federal civilian employment of a workday.” Id. at 118.
After § 752.402 was promulgated, OPM explained that
the rule was intended to abrogate the “continuing em-
ployment contract” theory, stating in a response to public
comment that:
[T]he Board’s holding in Roden, which character-
ized a series of temporary limited appointments
for excepted service employees as a “continuing
employment contract” and allowed brief breaks in
service (as opposed to allowing no break) in com-
puting current continuous service, was based, in
large part, on OPM’s earlier FPM guidance which
was in effect at the time of the Roden decision.
This guidance was superseded by 5 C.F.R.
[§] 752.402(b) which became effective on July 11,
1988. The regulation makes clear that OPM’s pol-
WILLIAMS v. MSPB 5
icy governing the computation of current continu-
ous employment allows for no break in Federal ci-
vilian employment.
Reduction in Grade and Removal Based on Unacceptable
Performance, 54 Fed. Reg. 26,172-01, 26,174 (June 21,
1989) (emphasis added). Based on § 752.402, the Board
held that the series of temporary appointments held by
Mr. Winns did not qualify as “continuous employment.”
Winns, 124 M.S.P.R. at 121. The Board thus held it
lacked jurisdiction over his termination appeal. Id.
B
Mr. Williams is also a preference-eligible veteran. He
was appointed as a Rural Carrier Associate (RCA) by the
U.S. Postal Service. While serving as a RCA, Mr. Wil-
liams applied, and was selected, for an appointment as a
City Carrier Assistant (CCA). Both RCAs and CCAs are
non-career positions. CCA positions are subject to a
collective bargaining agreement. That agreement states
that CCA positions are limited to “terms of 360 calendar
days” and must “have a break in service of 5 days between
appointments.” J.A. in No. 17-1535 at 467.
Mr. Williams served as a RCA for around 22 months
before he was reappointed to a CCA position. Under the
collective bargaining agreement, Mr. Williams took a five-
day break in service between his RCA and CCA positions.
After serving three months as a CCA, Mr. Williams was
involved in an automobile accident, and the Postal Service
terminated his employment. Mr. Williams appealed his
termination to the Board, and argued that the Postal
Service violated his collective bargaining agreement and
engaged in prohibited personnel practices.
The administrative judge dismissed Mr. Williams’s
appeal for lack of jurisdiction. Because of the five-day
break in service between Mr. Williams’s RCA and CCA
appointments, the administrative judge determined that
6 WILLIAMS v. MSPB
Mr. Williams did not complete one year of continuous
service, as required by § 7511(a)(1)(B)(ii). Accordingly,
the administrative judge held that Mr. Williams was not a
Postal Service employee with Board appeal rights. Mr.
Williams petitioned for review of the initial decision,
which the Board denied.
Mr. Williams appealed to this court. Under Roden,
Mr. Williams argued that he was an “employee” with
appeal rights because his appointment as a RCA should
count towards the one year of “current continuous service”
required by § 7511(a)(1)(B)(ii). As in Mr. Winns’s appeal,
the Board asked this court for a remand to reconsider
Roden, and we granted the Board’s request. Williams v.
Merit Sys. Prot. Bd., No. 16-1629 (Fed. Cir. June 22,
2016), ECF No. 19.
Because it had overruled the “continuing employment
theory” in Winns, 124 M.S.P.R. at 117–21, the Board
similarly concluded that it lacked jurisdiction over Mr.
Williams’s appeal. The Board also rejected Mr. Williams’s
argument that his five-day interruption between his RCA
and CCA appointments did not constitute a “break in
service” under § 752.402. In doing so, the Board relied on
the ordinary meaning of “break” as “an interruption in
continuity.”
Alternatively, Mr. Williams argued that he retained
his appeal rights from his RCA position under the Exum
rule. In Exum v. Department of Veterans Affairs, the
Board held that an employee could retain their appeal
rights from a prior position if the agency fails to inform
the employee that their change in position might result in
a loss of appeal rights. 62 M.S.P.R. 344, 349 (1994). The
Board, however, found that Mr. Williams did not satisfy
the requirements under Exum. In particular, the Board
found that Mr. Williams failed to show that “he would not
have accepted his new position with the agency if he had
known of the resulting loss of appeal rights.” J.A. in No.
WILLIAMS v. MSPB 7
17-1535 at 12 (emphasis added). Instead, Mr. Williams
testified only that he did not know whether he would have
accepted the CCA position had he known about the poten-
tial loss of his appeal rights. J.A. in No. 17-1535 at 13.
Mr. Williams and Mr. Winns appeal the Board’s dis-
missal of their respective claims. We have jurisdiction
over both appeals under 28 U.S.C. § 1295(a)(9).
II
We may set aside a decision of the Board if the deci-
sion is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Whether the Board has juris-
diction is a question of law that we review de novo. See,
e.g., Van Wersch v. Dep’t of Health & Human Servs., 197
F.3d 1144, 1147 (Fed. Cir. 1999).
A
We start with the Board’s interpretation of “current
continuous service.” Section 7511 defines “employee” for
the provisions that give the Board jurisdiction over ap-
peals by federal employees. Wilder v. Merit Sys. Prot. Bd.,
675 F.3d 1319, 1321 (Fed. Cir. 2012). The statute states
that “‘employee’ means . . . a preference eligible in the
excepted service who has completed 1 year of current
continuous service in the same or similar positions . . . in
the United States Postal Service . . . .” § 7511(a)(1)(B)(ii).
OPM’s regulation in turn defines “current continuous
employment” as “a period of employment or service im-
mediately preceding an adverse action without a break in
Federal civilian employment of a workday.” 5 C.F.R.
8 WILLIAMS v. MSPB
§ 752.402. 1 We conclude that OPM’s regulation is a
reasonable interpretation of the statute, and that the
Board correctly applied OPM’s regulation.
Congress authorized OPM to “prescribe regulations to
carry out the purpose of th[e] subchapter” of the Civil
Service Reform Act that includes § 7511. 5 U.S.C. § 7514;
accord Wilder, 675 F.3d at 1322. And OPM relied on
notice-and-comment rulemaking to promulgate its regula-
tion defining “current continuous service.” Adverse
Actions, 53 Fed. Reg. 21,619-01, 21,623 (June 9, 1988).
Thus, we apply the two-step framework of Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), to determine whether OPM’s regula-
tion is permissible. At Chevron step one, we consider
whether Congress has directly spoken to the precise
question at issue. Id. at 842–43. If Congress left no
statutory ambiguity, then we must give effect to congres-
sional intent. Id. But if the statute is silent or ambigu-
ous, then, at step two, we determine whether the agency’s
regulation is permissible, and we must defer to the agen-
cy’s reasonable interpretation of an ambiguous statute.
Id. at 843.
At Chevron step one, we find that Congress did not
speak directly to whether a series of temporary appoint-
ments, with short breaks in between, can count as “con-
tinuous service” under § 7511. There is no definition of
“current continuous service” in the statute. Nor are we
aware of any legislative history that tells us whether
1 The statute uses the term “service,” whereas
OPM’s regulation uses the term “employment.” Despite
this difference in terminology, we have treated OPM’s
regulation as interpreting the statutory term “current
continuous service.” Wilder, 675 F.3d at 1321–22. Nei-
ther party argues that the difference in terminology has
any legal significance here.
WILLIAMS v. MSPB 9
Congress intended the statute to cover an individual who
was employed through a series of temporary appoint-
ments.
Nevertheless, Mr. Williams contends the statute is
clear that employment is “continuous” where both parties
intend the employee to continue working from position to
position, even if there are short breaks in between. To
support this reading of the statute, Mr. Williams cites to
Board decisions finding that a series of temporary ap-
pointments counts as “continuous service” under the
“continuing employment contract” theory. See, e.g.,
Roden, 25 M.S.P.R. at 368; Melvin v. U.S. Postal Serv., 79
M.S.P.R. 372, 379 (1998). The Board’s decisions, however,
do not show that Congress intended “continuous service”
to cover a series of temporary appointments. At best,
these decisions show the Board has changed its interpre-
tation of § 7511. But supposedly inconsistent Board
decisions are not relevant here for purposes of determin-
ing congressional intent, nor was the Board charged with
promulgating regulations to carry out the statute at issue.
OPM is the agency so charged and it was OPM that
promulgated 5 C.F.R. § 752.402, which further defined
“continuous service.” And it was OPM’s regulatory defini-
tion that ultimately resulted in the Board’s overruling of
its “continuing employment contract” theory.
At Chevron step two, we find that OPM’s interpreta-
tion of § 7511 is a permissible construction of the statute.
OPM’s regulation defines “current continuous employ-
ment” as “a period of employment or service immediately
preceding an adverse action without a break in Federal
civilian employment of a workday.” 5 C.F.R. § 752.402.
As the Board noted in reviewing the regulation, the
ordinary meaning of “continuous” is “uninterrupted,”
“unbroken,” or “marked by uninterrupted extension in
space, time, or sequence.” Winns, 124 M.S.P.R. at 119.
Thus, OPM’s definition is consistent with the common
understanding of “continuous.” We are unaware of any
10 WILLIAMS v. MSPB
legislative intent to depart from the plain meaning of the
statutory text.
Mr. Williams further asserts that OPM’s interpreta-
tion of § 7511 is not entitled to deference because it mere-
ly parrots the statute. It is true that “[a]n agency does
not acquire special authority to interpret its own words
when, instead of using its expertise and experience to
formulate a regulation, it has elected merely to para-
phrase the statutory language.” Gonzales v. Oregon, 546
U.S. 243, 257 (2006). This is commonly known as the
anti-parroting canon. Mr. Williams’s reliance on this
doctrine, however, is misplaced because OPM’s regulation
does more than paraphrase the statute. Section 7511
uses the term “continuous employment” without clarifica-
tion. OPM’s regulation defines the term as “without a
break . . . of a workday.” 5 C.F.R. § 752.402 (emphasis
added). Mr. Williams argues the regulation is parroting
because “without a break” and “continuous” are synony-
mous. But OPM’s regulation does more than para-
phrase—it also establishes the break duration that cuts
off “continuous employment.” Thus, § 752.402 clarifies an
otherwise ambiguous statutory term.
The Board also did not err in applying § 752.402 to
the appeals of Mr. Williams and Mr. Winns. It is undis-
puted that Mr. Williams took a five-day break between
his RCA and CCA positions. Likewise, Mr. Winns started
as a Postal Support Employee after a five-day break from
a previous appointment. Neither Mr. Williams nor Mr.
Winns qualified as an employee under OPM’s regulation
because they had a break in service of at least one work-
day. Thus, the Board was correct in finding that Mr.
Williams and Mr. Winns did not meet the requirement of
“current continuous service,” as the term is defined by
OPM.
WILLIAMS v. MSPB 11
B
Next, we turn to whether Mr. Williams has appeal
rights before the Board under the Exum rule. In Exum,
the Board held that an agency’s failure to inform an
employee that a voluntary change in position might lead
to a loss of appeal rights could result in the retention of
appeal rights. 62 M.S.P.R. at 349. Mr. Williams argues
the Exum rule should apply to him because the Postal
Service failed to notify him that his change from a posi-
tion with appeal rights (RCA) to a position without such
rights (CCA) would result in a loss of appeal rights. We
reject this argument and the Exum rule. As we held in
Carrow v. Merit Systems Protection Board, an agency’s
failure to advise federal employees on the terms of their
appointment “does not create appeal rights for positions
as to which Congress has not given the Board appellate
jurisdiction.” 626 F.3d 1348, 1353 (Fed. Cir. 2010).
The Board itself has limited the Exum rule to trans-
fers within the same agency. Park v. Dep’t of Health &
Human Servs., 78 M.S.P.R. 527 (1998). In Park, the
Board explained that in intra-agency transfers, “the
agency ha[s] all of the necessary information at hand to
inform the appellant properly of the consequences of the
acceptance of the new position.” Id. at 534–35. By con-
trast, “a new employing agency may not possess and
cannot be expected to have specific knowledge of the
terms of the potential employee’s previous employment.
It should not have the same obligation to advise the
employee of all possible consequences of changing posi-
tions.” Id. at 535.
In Carrow, we confirmed that Exum does not apply to
federal workers who transfer between agencies, but we
relied on a different rationale than the Board. 626 F.3d at
1353–54. There, the appellant transferred from the
Department of the Army to the Department of Veterans
12 WILLIAMS v. MSPB
Affairs, from which he was subsequently removed. Id.
We explained that:
[The statute] does not give the Board jurisdiction
over an appeal from a removal by a person who
does not qualify as an “employee.” . . . By statute,
[the appellant’s] position with the DVA did not
carry Board appeal rights, and the DVA’s failure
to advise Mr. Carrow of the terms of his appoint-
ment does not create appeal rights for positions as
to which Congress has not given the Board appel-
late jurisdiction.
Id. at 1353. Because Carrow did not involve a federal
worker who transferred within the same agency, we
declined to “approve or disapprove the Board’s rule in
Exum and its progeny” that an employee can retain
appeal rights from a prior position for an intra-agency
transfer. Id. at 1354.
Although Carrow involved an inter-agency transfer,
its rationale is equally applicable to transfers within the
same agency. Unlike the Board’s decision in Park, our
reasoning did not depend on the agency’s lack of
knowledge about the potential employee’s previous ap-
pointment. Instead, the dispositive issue was whether an
employee’s position carries statutorily created appeal
rights. Id. The agency’s failure to advise an employee
cannot create appellate jurisdiction for positions that do
not otherwise have appeal rights. Id. It makes no differ-
ence whether the employee transferred within the same
agency or to a different agency. Thus, we specifically
disapprove the Exum rule, even for intra-agency trans-
fers, and hold that an agency’s failure to inform an em-
ployee of the consequences of a voluntary transfer cannot
confer appeal rights to an employee in a position which
has no appeal rights by statute.
Our decision here is distinguishable from situations in
which an employee with appeal rights is coerced or de-
WILLIAMS v. MSPB 13
ceived into resigning or retiring. Covington v. Dep’t of
Health & Human Servs., 750 F.2d 937, 942 (Fed. Cir.
1984). In those situations, our precedent makes clear
that a seemingly voluntary act by an employee can be
considered involuntary based on deceptive or coercive
agency action. See, e.g., id.; Middleton v. Dep’t of Def., 185
F.3d 1374, 1383 (Fed. Cir. 1999). And in those cases, we
have held that an employee could exercise appeal rights
to the Board. Id.
By contrast, Mr. Williams made no allegation that he
was misled or coerced into taking the new CCA position.
He voluntarily applied, and was selected, for the CCA
position. Taking on a new position often leads to various
changes in benefits. The agency has no obligation to
advise its employees of all the potential changes associat-
ed with a new job. And certainly the agency’s failure to
advise its employee on the full range of consequences
associated with a new position does not make the employ-
ee’s decision to accept the position involuntary.
Conceivably, there may be situations in which an
agency coerces or deceives an employee into accepting a
new position. We need not consider those scenarios here.
Mr. Williams alleges only that the Postal Service failed to
advise him on the loss of appeal rights that would result
from his reappointment as a CCA. We hold that the
agency’s failure to advise Mr. Williams does not allow him
to retain appeal rights from a prior appointment.
C
Finally, Mr. Williams argues that the Board’s decision
to overturn Roden violated his due process rights. Specif-
ically, Mr. Williams contends that he had a right to ap-
peal as a federal employee based on the “continuing
employment contract” theory in Roden. By overturning
Roden and applying its decision retroactively, Mr. Wil-
liams asserts that the Board deprived him of his property
right to appeal his termination.
14 WILLIAMS v. MSPB
We are not persuaded by Mr. Williams’s due process
challenge. Property rights “are created and their dimen-
sions are defined by existing rules or understandings that
stem from an independent source.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972). Here, the appeal
rights of federal employees are statutorily defined by
§ 7511. Although Roden broadly construed the term
“continuous service” under § 7511, it did not create an
independent basis for appeal or a separate property right
in the “continuing employment contract” theory.
Because § 7511 only creates appeal rights for employ-
ees who have served continuously for more than one year,
Mr. Williams relinquished any appeal rights he may have
had at the RCA position when he accepted reappointment
as a CCA. Thus, we find that the Board did not deprive
Mr. Williams of his appeal rights when it dismissed his
appeal for lack of jurisdiction.
III
For the reasons above, we affirm the Board’s dismis-
sal of Mr. Williams’s and Mr. Winns’s cases for lack of
jurisdiction.
AFFIRMED