892 F.3d 1156
Fed. Cir.2018Background
- Derek Williams and Harris Winns, preference-eligible former USPS non‑career employees, were removed and appealed to the Merit Systems Protection Board (MSPB).
- Both had series of temporary or non‑career appointments with five‑day breaks between sequential appointments (RCA→CCA for Williams; prior appointment→Postal Support Employee for Winns).
- MSPB dismissed both appeals for lack of jurisdiction under 5 U.S.C. § 7511(a)(1)(B)(ii) because neither had completed one year of “current continuous service.”
- MSPB rejected the Board’s earlier “continuing employment contract” doctrine (Roden) and applied OPM’s regulation, 5 C.F.R. § 752.402, defining current continuous employment as uninterrupted employment “without a break... of a workday.”
- Williams alternatively argued (1) he retained appeal rights under Exum because USPS did not warn him that reappointment would forfeit appeal rights, and (2) retroactive overruling of Roden violated due process.
- The Federal Circuit affirmed: OPM’s regulation reasonably interprets § 7511, Exum cannot create jurisdiction, and no due‑process violation occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a series of temporary appointments with short breaks counts as one year of “current continuous service” under § 7511 | Williams/Winns: continuing employment contract theory (series counts if parties intended continuity) | OPM/MSPB: § 752.402 requires no break of a workday; short breaks break continuity | Chevron deference applies; OPM rule is reasonable; five‑day breaks defeat continuity — no MSPB jurisdiction |
| Whether OPM’s definition is an impermissible verbatim restatement (anti‑parroting) | Williams: regulation merely parrots statute and is not entitled to deference | OPM/MSPB: regulation specifies the break duration and clarifies ambiguity | Regulation clarifies ambiguous statutory term and is entitled to deference |
| Whether failure to notify about loss of appeal rights (Exum) preserves prior appeal rights | Williams: USPS’s failure to advise means he retained RCA appeal rights after reappointment | MSPB/USPS: agency’s failure cannot create statutory appeal rights | Court disapproved Exum broadly; agency’s failure to advise cannot confer appellate jurisdiction where statute does not provide it |
| Whether retroactive overruling of Roden violated due process by taking away a property interest in appeal rights | Williams: he relied on Roden and had a property right to appeal | MSPB/USPS: appeal rights are statutory; Roden did not create independent property rights | No due‑process violation — appeal rights are statutory and were not created by Roden |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (administrative‑law deference framework)
- Gonzales v. Oregon, 546 U.S. 243 (anti‑parroting canon and limits on agency paraphrase)
- Carrow v. Merit Systems Protection Board, 626 F.3d 1348 (agency failure to advise cannot create Board jurisdiction over positions lacking statutory appeal rights)
- Wilder v. Merit Systems Protection Board, 675 F.3d 1319 (statutory definition of "employee" for MSPB jurisdiction)
- Covington v. Department of Health & Human Services, 750 F.2d 937 (involuntary resignation/coercion doctrines affecting appeals)
- Middleton v. Department of Defense, 185 F.3d 1374 (deception/coercion can render a voluntary act involuntary for appeal purposes)