Harris L. Winns v. United States Postal Service
2017 MSPB 1
MSPB2017Background
- Winns, a preference-eligible USPS employee, served in four successive temporary appointments (each <1 year) separated by short breaks; he was terminated in late 2014 during his last temporary appointment.
- Winns appealed his termination to the MSPB, alleging among other things whistleblower retaliation; the administrative judge dismissed for lack of jurisdiction because Winns lacked 1 year of “current continuous service.”
- On petition for review Winns argued for the first time that his service qualified under the Board’s "continuing employment contract" theory from Roden v. TVA, which would treat intermittent temporary appointments as continuous service.
- The MSPB denied review; Winns appealed to the Federal Circuit, which remanded for the Board to reconsider Roden in light of 5 C.F.R. § 752.402 (an OPM regulation defining “current continuous employment”).
- On remand the Board considered whether Roden remains good law given Chevron deference to OPM’s regulation and whether Roden’s “continuing employment contract” theory could establish section 7511(a)(1)(B) jurisdiction despite breaks in service.
- The Board overruled Roden and related precedents, held OPM’s regulation reasonable and entitled to Chevron deference, and affirmed dismissal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Winns had 1 year of current continuous service under 5 U.S.C. § 7511(a)(1)(B) | Roden continuing-employment-contract theory makes intermittent temp appointments continuous service | OPM regulation 5 C.F.R. § 752.402 requires no break in Federal civilian employment of a workday; Roden incompatible | Board: Winns lacked 1 year; regulation controls; Roden overruled |
| Whether OPM’s definition of “current continuous employment” is a permissible construction of § 7511(a)(1)(B) | Definition is unreasonable compared to tacking rules (30-day rule) | OPM authorized to implement chapter 75; regulation is reasonable and plain-meaning consistent | Board: Chevron step 1/2 review—statute consistent with plain meaning; even if ambiguous, OPM interpretation is reasonable; defer to OPM |
| Whether the Board may find jurisdiction based on a contract/agreement despite statutory limits | Contract theory (Roden) can create continuity despite breaks | Board lacks power to expand statutorily defined jurisdiction; parties cannot confer jurisdiction by contract | Board: Jurisdiction is statutory; cannot be conferred by contract; Roden was wrongly decided and is overruled |
| Whether whistleblower/other retaliation/discrimination claims survive if adverse action is not otherwise appealable | Winns contended retaliation claims merited review | Without an otherwise appealable adverse action under chapter 75, Board lacks jurisdiction over those claims | Board: No jurisdiction over whistleblower/probationary/reprisal/discrimination claims absent appealable action |
Key Cases Cited
- Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363 (1984) (Board decision adopting "continuing employment contract" theory)
- Wilder v. Merit Systems Protection Board, 675 F.3d 1319 (Fed. Cir. 2012) (discussing OPM regulation defining current continuous employment)
- Mathis v. U.S. Postal Service, 865 F.2d 232 (Fed. Cir. 1988) (defining employee appeal rights under § 7511)
- Hartman v. Merit Systems Protection Board, 77 F.3d 1378 (Fed. Cir. 1996) (Board jurisdiction limited to statute, rule, or regulation)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for judicial deference to agency interpretations)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (reasonableness standard for agency interpretations)
- Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993) (use of ordinary meaning when statutory terms undefined)