Ann M. McCormick v. Department of the Air Force , 307 F.3d 1339 ( 2002 )

MAYER, Chief Judge,

dissenting.

Because Van Wersch v. Dep’t of Health and Human Serv., 197 F.3d 1144, 1147 (Fed.Cir.1999), is not controlling, and a correct reading of the statute negates McCormick’s appeal rights, I dissent. The statute requires that an employee must satisfy 5 U.S.C. § 7511 (a)(l)(A)(i), and if he does not, if he is serving a probationary period, then section 7511 (a)(l)(A)(ii) does not come into play. And this interpretation is clearly supported by the legislative history. S. Rep. 95-969, *48, 1978 U.S.C.C.A.N. 2723, **2769.

Van Wersch interpreted 5 U.S.C. § 7511(a)(1)(C), defining “employee” for those individuals in the excepted service. At issue here, however, is section 7511(a)(1)(A) directed to the competitive service. The language is similar, but those sections are devoted to two separate classes of employees, possessed of dramatically different rights and obligations. Van Wersch did not address section 7511(a)(1)(A) at all, so it is of no significance to our case.

Even if Van Wersch is thought to be persuasive, however, there is contrary earlier precedent that correctly interprets the statute. Pervez v. Dep’t. of the Navy, 193 F.3d 1371 (Fed.Cir.1999), affirmed the board’s conclusion that it lacked jurisdiction in a situation almost identical to this case in relevant part. And while the opinion directly addresses only subsection (A)(i) and not subsection (A)(ii), it could not have reached the same result if it had interpreted the relevant language in the way Van Wersch did. Of course, it is the earlier precedent by which we must be guided.