Mitchell v. Merit Systems Protection Board
741 F.3d 81
Fed. Cir.2014Background
- Mitchell was hired as an Assistant United States Attorney in December 2008, with the appointment subject to an 18-month temporary status due to a pending background check.
- The background investigation concluded in July 2009, after which Mitchell’s appointment status was described as a two-year trial period beginning August 2, 2009.
- Mitchell was fired effective July 29, 2011, just days before the end of the two-year period, without notice or response opportunity.
- The MSPB dismissed the appeal for lack of jurisdiction, treating Mitchell as not an “employee” under 5 U.S.C. § 7511(a)(1)(C)(ii).
- The court reversed and remanded, holding that Mitchell spent her roughly two-year tenure in an employment status that did not qualify as temporary during the relevant period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether time during background check counts toward 2 years | Mitchell argues the time counts as current continuous service. | Board treated that time as temporary and not counted. | Seven-month background-check period counted toward 2 years; Mitchell qualifies as employee. |
| Does 5 C.F.R. § 213.104(a) define 'temporary' for § 7511(a)(1)(C)(ii) | Regulation supports treating some time as temporary only if it fits the one-year limit. | Board should follow its interpretation of 'temporary' as used in § 7511(a). | Regulation meaning controls; temporary is generally one year or less, with limits; not applicable here as a temporary appointment. |
| Is the initial appointment’s label controlling for jurisdictional status | Label in SF-50/52 does not determine status; the service length matters. | Label of temporary appointment should inform the jurisdictional analysis. | Label not controlling; analysis centers on whether the appointment was truly temporary under the statute and regulations. |
Key Cases Cited
- Roy v. Merit Sys. Prot. Bd., 672 F.3d 1378 (Fed. Cir. 2012) (tacking time in same or similar jobs to reach two years)
- Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999) (purpose of two-year threshold to ensure performance evaluation and protections)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir. 1995) (precedent addressing employee status under § 7511(a))
- Carrow v. Merit Sys. Prot. Bd., 626 F.3d 1348 (Fed. Cir. 2010) (interpretation of temporary and permanent distinctions in appointments)
- Stern v. Dep’t of the Army, 699 F.2d 1312 (Fed. Cir. 1983) (historical context of temporary appointments under regulations)