Carrow v. Merit Systems Protection Bd., 2008-3267.

• Decision Date: 01 May 2009
• Docket Number: No. 2008-3267.,2008-3267.
• Parties: Rickey D. CARROW, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Department of Veterans Affairs, Intervenor.
• Court: U.S. Court of Appeals — Federal Circuit

564 F.3d 1359

Rickey D. CARROW, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and Department of Veterans Affairs, Intervenor.

No. 2008-3267.

United States Court of Appeals, Federal Circuit.

May 1, 2009.

Rickey D. Carrow, of Pinetown, NC, pro se.

Joyce G. Friedman, Acting Associate General Counsel, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief was B. Chad Bungard, General Counsel.

Scott T. Palmer, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With him on the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.

Before BRYSON, LINN, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

Rickey D. Carrow petitions for review of a decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction. We vacate and remand for further proceedings.

I

Mr. Carrow entered the federal competitive service as an orthotist for the Department of the Army in September 2001. After five years of continuous service with the Army, he applied for an orthotist-prosthetist position that had been advertised by the Department of Veterans Affairs ("DVA"). The vacancy announcement specified the terms and conditions of employment, including, inter alia, that the position was excepted from the competitive service under Title 38 and was subject to the completion of a probationary period. The DVA appointed Mr. Carrow to the advertised position on February 4, 2007, without a break from his prior service. Subsequently, the Army and the DVA each issued a Notification of Personnel Action, Standard Form 50 ("SF-50") to reflect the change in Mr. Carrow's employment status. The Army's SF-50 characterized Mr. Carrow's appointment to the DVA as a "transfer." In contrast, the DVA's SF-50 stated that Mr. Carrow had been "converted" to the excepted service and appointed to a temporary, full-time position pursuant to 38 U.S.C. § 7405(a)(1). The DVA's SF-50 also stated that Mr. Carrow's employment status would remain "indefinite," or "temporary," pending certification by the Orthotist-Prosthetist Professional Standards Board. On June 8, 2007, four months after his appointment, Mr. Carrow was terminated for "unacceptable performance issues."

Mr. Carrow appealed the removal decision to the Merit Systems Protection Board, claiming that the DVA had denied him the procedural protections afforded to permanent, full-time employees in the competitive service. See, e.g., 5 U.S.C. § 7513. The administrative judge who was assigned to the case directed Mr. Carrow to submit evidence showing that the Board had jurisdiction to entertain the appeal. In his response, Mr. Carrow asserted that he had not knowingly surrendered the civil service rights he had earned in his previous position with the Army. Because his appointment had been described as a "transfer," Mr. Carrow argued that he should have retained his status as a competitive service employee and received credit for having completed a probationary period in connection with his prior service. Mr. Carrow also contended that he was not informed of the board certification requirement that was described in the DVA's SF-50. The DVA responded that Mr. Carrow had been apprised of the terms and conditions of his appointment both by the vacancy announcement itself and by the various DVA personnel who had shepherded him through the hiring process.

The administrative judge held a hearing to resolve the parties' dispute as to Mr. Carrow's employment status at the time of his removal. At that hearing, Mr. Carrow testified that Larry James, the Human Resources Specialist responsible for recruiting candidates for the vacancy, had characterized his appointment as a "transfer" from the Army to the DVA. Although Mr. Carrow acknowledged that he had reviewed the vacancy announcement before applying to the DVA, he argued that the DVA was required by its internal policies to inform him of the specific consequences of accepting the advertised position. Mr. Carrow introduced into evidence the DVA's Human Resources Management Letter No. 05-04-02, dated March 4, 2004, which provided "interim guidance and instructions" for implementing the Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, Pub.L. No. 108-170, §§ 301-304, 117 Stat. 2042, 2054-60. One of the changes effected by that statute was the expansion of the "hybrid" Title 38 personnel system to include several classes of employees that had previously been in the competitive service, including orthotist-prosthetists. The Human Resources Management Letter instructed DVA officials to notify "converted" employees of the newly applicable regulations and policies and of any changes in their civil service rights under the competitive service system. Mr. James testified that the notice requirement was still in effect when Mr. Carrow was hired and that the DVA's failure to afford Mr. Carrow such notice, if it occurred, was an oversight.

Mr. Carrow also stated that the DVA had failed to advise him that his appointment would be temporary pending the outcome of the board certification process. Mr. Carrow's testimony was controverted by Mr. James, who stated that he had discussed the position with Mr. Carrow on several occasions and on at least one occasion had told Mr. Carrow the appointment would be temporary until the board certification process was completed. The administrative judge also received a statement from Kurt Keeton, a DVA supervisor who interviewed Mr. Carrow. Mr. Keeton stated that in January 2007 he had a telephone conversation with Mr. Carrow in which he "explained ... that all new employees who are Orthotists in the VA need to be boarded" prior to their arrival. Since Mr. Carrow had indicated that he was anxious to start immediately, Mr. Keeton arranged for "a temporary appointment until the boarding action was complete" and then "let Mr. Carrow know this information."

Following the hearing, the administrative judge concluded that Mr. Carrow had failed to establish that the Board had jurisdiction over his appeal. The principal ground for the administrative judge's decision was that Mr. Carrow had voluntarily accepted a temporary appointment under 38 U.S.C. § 7405(a)(1). Because that provision allows the DVA to appoint certain health care professionals "without regard to civil service or classification laws, rules, or regulations," the administrative judge concluded that Mr. Carrow had forfeited any appeal rights he had in his previous position with the Army. In the alternative, the administrative judge held that Mr. Carrow was ineligible for appellate rights under 5 U.S.C. § 7511. Because Mr. Carrow was a temporary, probationary, and nonpreference eligible employee in the excepted service, the administrative judge found that he could qualify for the right to appeal to the Board, if at all, only under 5 U.S.C. § 7511(a)(1)(C)(ii). With respect to that provision, however, the administrative judge ruled that Mr. Carrow could not satisfy the requirement of two years of current, continuous service "in an Executive agency," because he had not completed two years of service within the DVA. In the administrative judge's view, Mr. Carrow was precluded from tacking on his prior service in the Department of the Army because the statutory two years of service were required to be performed in the same Executive agency.

After the full Board denied a petition for review, Mr. Carrow petitioned for review by this court.

II

We first review the administrative judge's finding that Mr. Carrow voluntarily accepted a temporary appointment under 38 U.S.C. § 7405(a)(1). We then address the administrative judge's legal conclusion that by accepting that temporary appointment, Mr. Carrow surrendered his right to challenge his removal before the Board.

A

The administrative judge first directed her attention to the type of appointment that Mr. Carrow held within the DVA. The vacancy announcement described the open position as a Title 38 excepted service position that was subject to a probationary period. The DVA's SF-50 stated that Mr. Carrow was employed pursuant to 38 U.S.C. § 7405(a)(1). That citation confirmed that the position was in the excepted service, and the SF-50 explicitly stated that Mr. Carrow's tenure status was "indefinite," or temporary, pending board certification. Although the vacancy announcement stated that professional certification was "not required," the administrative judge reasonably credited the testimony of Messrs. James and Keeton that certification was a condition of Mr. Carrow's employment. Despite the contrary evidence in the record suggesting that Mr. Carrow was "transferred" from his previous competitive service position within the Army, we hold that the administrative judge correctly characterized Mr. Carrow as a probationary employee who had been appointed pursuant to 38 U.S.C. § 7405(a)(1).

The administrative judge then addressed Mr. Carrow's contention that he was not on notice that he would be surrendering his appeal rights if he accepted the advertised position with the DVA. Since the parties are in agreement that it would have been sufficient for Mr. Carrow to be alerted to the material terms of his employment, we need not decide the precise contours of the notice requirement for an individual in Mr. Carrow's circumstances. See generally Park v. Dep't of Health & Human Servs., 78 M.S.P.R. 527, 534 (1998); Covington v. Dep't of Health &amp Human Servs., 750 F.2d 937, 943 (Fed.Cir. 1984). The DVA's vacancy announcement expressly stated that the position being advertised was both excepted from the competitive service and subject to a probationary period. Moreover, the administrative judge permissibly rejected Mr. Carrow's account of the facts in favor of the DVA officials' testimony that he was put...