Wilder v. Merit Systems Protection Board
2012 U.S. App. LEXIS 7093
| Fed. Cir. | 2012Background
- Wilder served 26 years in the Army and began a civilian federal position as a maintenance management specialist under a one-year probation starting Aug 31, 2009.
- On Aug 3, 2010 Wilder was terminated for unacceptable performance before the probationary period ended.
- An administrative judge concluded Wilder, as a probationary employee with less than one year of current continuous service, had no statutory right to appeal to the MSPB.
- Wilder petitioned the full MSPB; the Board briefly addressed whether military service could tack onto civilian service to satisfy the one-year requirement and rejected it.
- The Board held that current continuous service means federal civilian employment and that prior military service cannot be tacked to meet the one-year requirement.
- Wilder appealed, arguing federal employment can include prior military service and that pre-appointment/directed discrimination issues could grant rights to appeal; the court analyzed jurisdiction and statutory interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 'current continuous service' include prior military service? | Wilder seeks to tack military service onto civilian service to meet 1 year. | OPM regulation 752.402 limits to Federal civilian employment; military service not counted. | Yes, the Board correctly held military service does not count; statute ambiguous but regulation reasonable. |
| Does pre-appointment discrimination or racial-discrimination grounds provide MSPB jurisdiction here? | Discrimination or pre-appointment basis should yield rights to appeal. | Discrimination claims require jurisdiction over the adverse action and pre-appointment grounds are not shown; racial assertion not timely raised or within scope. | No, MSPB lacked jurisdiction; discrimination claims were not properly pled or timely raised and Board lacked jurisdiction over the removal. |
Key Cases Cited
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (establishes Chevron deference for agency interpretations)
- Mead Corp., 533 U.S. 218 (2001) (court analyzes agency interpretation in Chevron framework)
- Carrow v. Merit Sys. Prot. Bd., 564 F.3d 1359 (Fed.Cir.2009) (reaffirms Chevron application to MSPB questions)
- Bell v. Department of Homeland Security, 95 M.S.P.R. 580 (2004) (regulatory interpretation of 'current continuous service')
- Cruz v. Dep't of the Navy, 934 F.2d 1240 (Fed.Cir.1991) (discrimination claims and Board jurisdiction limits)
- Collins v. Merit Sys. Prot. Bd., 978 F.2d 675 (Fed.Cir.1992) (jurisdictional scope of Board review)
- Granado v. Dep't of Justice, 721 F.2d 804 (Fed.Cir.1983) (jurisdictional limits on discrimination claims)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (Supreme Court 2009) (limits of agency interpretations under Chevron)