Roy v. Merit Systems Protection Board, 2012 U.S. App. LEXIS 5411

Roy worked as a permanent attorney for DHS (2000–2008).
From March to November 2008, she held an excepted temporary Immigration Judge appointment (≤18 months).
On November 9, 2008, she began a permanent excepted Immigration Judge appointment in DOJ.
DOJ terminated her appointment on April 23, 2010 for alleged misconduct.
Roy appealed to the Board under 5 U.S.C. § 7511(a)(1)(C)(ii); the Board dismissed for lack of jurisdiction.
The court reviews the Board’s jurisdiction de novo and holds Roy is not an “employee” under § 7511(a)(1)(C)(ii).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Roy is an employee under §7511(a)(1)(C)(ii).	Roy contends two years of current continuous service may be satisfied.	Board held no two-year continuous permanent service at removal.	Roy is not an employee under §7511(a)(1)(C)(ii); Board correct.

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir. 1995) (Board lack of jurisdiction when <2 years in permanent service)
Van Wersch v. Department of Health and Human Services, 197 F.3d 1144 (Fed. Cir. 1999) (subsection (ii) alternatives; does not guide the continuity rule)
Carrow v. Merit Sys. Prot. Bd., 564 F.3d 1359 (Fed. Cir. 2009) (addressed involuntary waiver, not §7511(ii) requirements)
Carrow v. Merit Sys. Prot. Bd., 626 F.3d 1348 (Fed. Cir. 2010) (Carrow II; Board lacked jurisdiction confirmed)