821 F.3d 1376
Fed. Cir.2016Background
- Renu Lal was appointed as a "distinguished consultant" at the Public Health Service under 42 U.S.C. § 209(f), which authorizes appointment "without regard to the civil-service laws."
- The agency terminated Lal without providing notice or opportunity to respond, believing § 209(f) placed her outside Title 5 due-process protections.
- Lal appealed to the Merit Systems Protection Board (MSPB); the Board dismissed for lack of jurisdiction, concluding § 209(f) removed Board review.
- Lal appealed the Board’s jurisdictional dismissal to this court.
- The court considered whether the Civil Service Due Process Amendments of 1990 (5 U.S.C. § 7511(a)(1)(C)) confer appeal rights on non-preference eligible excepted-service employees hired under § 209(f).
- The court examined statutory text, the historical statutory scheme (CSRA and the 1990 Amendments), and precedent interpreting similar "without regard to" appointment provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 209(f) bars MSPB jurisdiction over removals of consultants appointed "without regard to the civil-service laws" | Lal: § 209(f) only addresses appointment; the 1990 Due Process Amendments extend MSPB appeal rights to non-preference excepted-service employees like her | Agency: § 209(f)’s "without regard to the civil-service laws" places consultants outside Title 5 protections, so MSPB lacks jurisdiction | Held: § 209(f) authorizes excepted-service appointments but does not by its text exempt consultants from § 7511; MSPB has jurisdiction if statutory criteria are met |
| Whether the Due Process Amendments impliedly repeal or are inconsistent with § 209(f) | Lal: The Amendments specifically extended appeal rights to many excepted-service employees and do not conflict with § 209(f) | Agency: Allowing appeals would defeat Congress’s authorization to hire "without regard to" civil-service laws | Held: No irreconcilable conflict; the Amendments operate to extend appeal rights where § 209(f) lacks an explicit removal or § 7511 exclusion |
| Whether an OPM regulation contrary to the statutory scheme controls | Lal: Statute controls; regulation cannot override § 7511 and § 209(f) plain meaning | Agency/OPM: regulation restricts appeals for these consultants | Held: Any regulation contrary to the statutes has no force here |
| Whether precedent compels exemption absent explicit text | Lal: Precedent requires explicit statutory exemption to deny § 7511 rights | Agency: Some cases permit broad "without regard to" language to include removal | Held: Court distinguishes cases: explicit statutory removal/exemption language is required to deny § 7511 rights; § 209(f) lacks that language |
Key Cases Cited
- Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215 (Fed. Cir.) (standard of review and discussion of Due Process Amendments' purpose)
- Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir.) (definition of "employee" and MSPB review under Title 5)
- Lindahl v. Office of Personnel Management, 470 U.S. 768 (U.S.) (context on CSRA’s overhaul of civil service protections)
- United States v. Fausto, 484 U.S. 439 (U.S.) (CSRA’s limits on judicial review and the resulting gap addressed by 1990 Amendments)
- Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed. Cir.) (statute explicitly excluding § 7511 coverage will bar MSPB appeals)
- King v. Briggs, 83 F.3d 1384 (Fed. Cir.) (Congress can expressly exempt positions from Title 5 protections)
- Briggs v. [Name omitted in opinion], 83 F.3d 1388 (Fed. Cir.) (statutory language limiting which parts of Title 5 may be disregarded does not imply exclusion from § 7511)