Banks v. Merit Systems Protection Board, 854 F.3d 1360

Banks was hired by the VA on July 26, 2015 as a Medical Support Assistant in the excepted service with a one-year probationary period.
On March 2, 2016 the VA notified Banks it planned to terminate her for performance; Banks resigned effective March 15, 2016 and appealed to the MSPB claiming her resignation was involuntary (constructive removal).
The AJ dismissed for lack of jurisdiction, finding Banks was not preference eligible and had no prior federal service in the record that would make her an "employee" under 5 U.S.C. § 7511(a)(1).
The Board considered additional evidence showing Banks had ~3 years’ continuous prior service with the U.S. Postal Service as a Mail Handler, but held that postal service time did not count as "service in an Executive agency" under § 7511(a)(1)(C)(ii).
Because Banks was still in probation with the VA and her Postal Service service is not "in an Executive agency," the court concluded she was not an "employee" with appeal rights to the Board; other claims (retaliation, hostile work environment) were outside MSPB jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Banks is an "employee" under 5 U.S.C. § 7511(a)(1) and thus has MSPB appeal rights after an alleged constructive removal	Banks: her ~3 years of continuous Postal Service employment qualifies as "service in an Executive agency," so she is an "employee" despite VA probationary status	Gov: Postal Service is not an "Executive agency" under Title 5 definitions, so Banks’s postal service does not confer employee status	Held: Postal Service service does not count; Banks is not an "employee" and MSPB lacks jurisdiction

Cruz v. Dep’t of Navy, 934 F.2d 1240 (Fed. Cir.) (involuntary resignation can be constructive removal)
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir.) (standard of review for jurisdictional/factual findings)
Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir.) (statutory-interpretation review)
Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir.) (alternative routes to qualify as an "employee")
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir.) (MSPB lacks jurisdiction over hostile work environment/retaliation absent an independently appealable action)
U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736 (U.S.) (Postal Service is an independent establishment, not a government corporation)
Erickson v. U.S. Postal Serv., 759 F.3d 1341 (Fed. Cir.) (Postal Service is not an "executive agency" under Title 5 for Back Pay Act coverage)
Wilder v. Merit Sys. Prot. Bd., 675 F.3d 1319 (Fed. Cir.) (OPM regulation governs "current continuous service" under § 7511)