Bennett v. Merit System Protection Board
2011 U.S. App. LEXIS 6416
| Fed. Cir. | 2011Background
- Bennett was a part-time sales clerk for the Veterans Canteen Services (VCS) in the excepted service, appointed under 38 U.S.C. § 7802(e) and not a preference eligible.
- Municipal control: 7802(e) authorizes removal by the Secretary without regard to Title 5 competitive service rules, with limited application of certain Title 5 provisions.
- Bennett was proposed for removal for misconduct in 2008 and appealed to the MSPB in 2009; the MSPB stayed pending jurisdictional questions.
- The MSPB and Administrative Judge dismissed Bennett’s appeal as lacking jurisdiction because her appointment falls under 7802(e) and thus is not covered by 5 U.S.C. § 7513(d).
- Bennett challenged MSPB’s jurisdiction before the Federal Circuit, arguing amendments to the CSRA and related regulations might provide appeal rights for her situation.
- The court ultimately held that Bennett, as a VCS employee appointed under 7802(e), does not have MSPB appeal rights under 5 U.S.C. § 7513(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 38 U.S.C. § 7802(e) exclude VCS employees from MSPB appeal rights? | Bennett argues 7802(e) excludes non-competitive appointments from Title 5. | DVA contends 7802(e) excludes these employees from 7513(d) rights. | Yes; 7802(e) excludes such employees from MSPB appeal rights. |
| Do the 1990 CSRA amendments grant MSPB appeal rights to Bennett? | Bennett argues 7511(a)(1)(C) and 7511(b) create rights for her. | DVA argues amendments do not implicitly repeal existing exclusions for 7802(e) appointees. | No; amendments do not grant rights to VCS appointees under 7802(e). |
| Is 5 C.F.R. § 752.401(d)(12) a permissible interpretation supporting exclusion? | Bennett relies on broader rights from CSRA amendments. | MSPB regulation confirms exclusion for employees appointed under separate statutory authority. | Yes; regulation supports exclusion from Chapter 75 rights. |
Key Cases Cited
- King v. Briggs, 83 F.3d 1384 (Fed. Cir. 1996) (removal power context limits rights under Title 5 actions)
- Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574 (Fed. Cir. 1995) (amendments to 7511 do not implicitly repeal other statutory entitlements)
- United States v. Fausto, 484 U.S. 439 (U.S. 1988) (Fausto-law narrowing of CSRA appeal rights for nonpreference employees)