Van Wersch v. Dept. of Health and Human Services

• Decision Date: 15 December 1999
• Docket Number: No. 98-3372.,98-3372.
• Citation: 197 F.3d 1144
• Parties: Monique VAN WERSCH, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

197 F.3d 1144

Monique VAN WERSCH, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.

No. 98-3372.

United States Court of Appeals, Federal Circuit.

December 15, 1999.

John P. Mahoney, Passman & Kaplan, P.C., of Washington, DC, argued for petitioner. With him on the brief was Joseph V. Kaplan.

Tara A. Hurley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Jeanne E. Davidson, Deputy Director.

Before PLAGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit Judge.

SCHALL, Circuit Judge.

Monique Van Wersch petitions for review of the final decision of the Merit Systems Protection Board (Board) that dismissed for lack of jurisdiction her appeal of her removal by the Department of Health and Human Services (agency). See Van Wersch v. Department of Health & Human Servs., 80 M.S.P.R. 470 (1998) (order). The Board dismissed Ms. Van Wersch's appeal because it concluded that, at the time of her removal, she was not an "employee" as that term is defined in 5 U.S.C. § 7511(a)(1)(C),¹ and therefore did not have appeal rights under 5 U.S.C. § 7701(a). Because the Board's decision is contrary to the plain language of the statute, we reverse and remand.

BACKGROUND

The pertinent facts are not in dispute. Ms. Van Wersch, a nonpreference eligible,² began her employment with the agency on March 26, 1989, when she was hired in a temporary position in the competitive service.³ Later, she was converted to an excepted service position⁴ pursuant to 5 C.F.R. § 213.3102(u).⁵ Section 213.3102(u) allows agencies to appoint "severely physically handicapped persons" to excepted service positions. Pursuant to the regulation, Ms. Van Wersch was under a temporary appointment pending conversion to the competitive service. See 5 C.F.R. § 213.3102(u)(1) (The "executive civil service" includes "positions . . . filled by severely physically handicapped persons who: . . . under a temporary appointment have demonstrated their ability to perform the duties satisfactorily . . . . Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status . . . ."). The Office of Personnel Management (OPM) has determined that these types of appointments, "made with the intent of converting the employee to an appointment in the competitive service," initially are served under a probationary or trial period. 57 Fed.Reg. 20041 (1992). Thus, in her § 213.3102(u) position, Ms. Van Wersch was a nonpreference eligible serving a probationary period under an initial appointment pending conversion to the competitive service.

In January of 1993, Ms. Van Wersch was promoted under § 213.3102(u) to the position of GS-3 Clerk-Typist. She served in that position for two years and eight months without being converted to the competitive service. On September 6, 1995, the agency removed her for alleged unacceptable conduct.

Ms. Van Wersch filed an appeal with the Board. As discussed more fully below, only an "employee," as that term is defined in 5 U.S.C. § 7511(a)(1), may appeal to the Board. In response to a motion by the agency, the administrative judge (AJ) dismissed the appeal for lack of jurisdiction because she concluded that Ms. Van Wersch was excluded from the definition of "employee" in 5 U.S.C. § 7511(a)(1)(C), and therefore had no right of appeal. See Van Wersch v. Department of Health & Human Servs., No. DC-0752-96-0049-I-1 (Feb. 6, 1996) (first initial decision).

On petition for review, the Board summarily affirmed the AJ's first initial decision insofar as it was based upon the determination that Ms. Van Wersch did not qualify as an "employee" under 5 U.S.C. § 7511(a)(1)(C). However, the Board remanded the appeal to the AJ in order for her to address whether the agency had converted Ms. Van Wersch to the competitive service, thereby making her an "employee" under 5 U.S.C. § 7511(a)(1)(A). See Van Wersch v. Department of Health & Human Servs., 72 M.S.P.R. 662 (1996) (opinion and order).

On remand, the AJ determined that Ms. Van Wersch had failed to establish that she had been converted to the competitive service so as to bring her within the definition of "employee" in 5 U.S.C. § 7511(a)(1)(A). See Van Wersch v. Department of Health & Human Servs., No. DC-0752-96-0049-B-3 (Dec. 23, 1997) (second initial decision). On August 6, 1998, the AJ's second initial decision became the final decision of the Board when the Board denied Ms. Van Wersch's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115 (1998). See Van Wersch v. Department of Health & Human Servs., 80 M.S.P.R. 470 (1998) (order).

On appeal, Ms. Van Wersch only seeks review of the Board's decision that she was not an "employee" with appeal rights under 5 U.S.C. § 7511(a)(1)(C). She does not appeal the Board's decision that she was not converted to the competitive service and therefore not an "employee" under 5 U.S.C. § 7511(a)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Kewley v. Department of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998).

The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute, rule, or regulation. See Todd v. Merit Sys. Protection Bd., 55 F.3d 1574, 1576 (Fed.Cir.1995). An appellant has the burden of establishing the Board's jurisdiction by a preponderance of the evidence. See Forest v. Merit Sys. Protection Bd., 47 F.3d 409, 410 (Fed.Cir.1995). Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which we review de novo. See id.

I.

Pursuant to 5 U.S.C. § 7701(a), "an employee . . . may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation." A removal is an action that is appealable to the Board. See 5 U.S.C. §§ 7512(1), 7513(d). Thus, Ms. Van Wersch's ability to appeal to the Board turns on whether she was an "employee" at the time of her removal by the agency.

The term "employee" is defined in 5 U.S.C. § 7511(a)(1), which provides as follows:

(a) For the purposes of this subchapter —

(1) "employee" means —

(A) an individual in the competitive service —

(i) who is not serving a probationary or trial period under an initial appointment; or

(ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(B) a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions —

(i) in an Executive agency; or

(ii) in the United States Postal Service or Postal Rate Commission; and

(C) an individual in the excepted service (other than a preference eligible) —

(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.

As noted above, Ms. Van Wersch is not appealing the Board's determination that she was never converted to the competitive service, which would have made her an "employee" under 5 U.S.C. § 7511(a)(1)(A). In addition, at the time of her removal, Ms. Van Wersch was a nonpreference eligible in an excepted service position. Consequently, she could not qualify as an "employee" under 5 U.S.C. § 7511(a)(1)(B), which applies only to preference eligibles in the excepted service. Thus, Ms. Van Wersch could only appeal to the Board if, at the time of her removal, she qualified as an "employee" under 5 U.S.C. § 7511(a)(1)(C).

It is undisputed that, at the time of her removal, Ms. Van Wersch was "serving a probationary or trial period under an initial appointment pending conversion to the competitive service." It also is undisputed that, at the time of her removal, she had "completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less." Thus, as far as the language of the statute is concerned, Ms. Van Wersch is excluded from the definition of an "employee" in 5 U.S.C. § 7511(a)(1)(C)(i). However, she fits within the definition of an "employee" in 5 U.S.C. § 7511(a)(1)(C)(ii). The question before us, then, is whether an individual who is excluded under subsection (i), such as Ms. Van Wersch, nevertheless is an "employee" if he or she meets the criteria of subsection (ii).

II.

It is axiomatic that statutory construction begins with the language of the statute itself. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579, 16 USPQ2d 1614, 1618 (Fed. Cir.1990). If the language is clear, the plain meaning of the statute will be regarded as conclusive. See id.

Turning to the language of the statute, the two subsections of 5 U.S.C. § 7511(a)(1)(C) are joined by the conjunction "or." The plain meaning of "or" is disjunctive. See Webster's Third New International Dictionary 1585 (1986) (stating that "or" is "a function word to indicate . . . an alternative between different or unlike things, states, or actions"). Thus, read literally, the statute says that Ms. Van Wersch is an "employee" if she meets the requirements of either subsection (i) or (ii) of 5...