King v. Briggs

Decision Date06 May 1996
Docket NumberNo. 95-3583,95-3583
Citation83 F.3d 1384
PartiesJames B. KING, Director, Office of Personnel Management, Petitioner, v. Ethel D. BRIGGS, Respondent, and Merit Systems Protection Board, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Armando O. Bonilla, Commercial Litigation Branch, Department of Justice, Washington, DC, argued for petitioner. With him on the brief were Frank W. Hunger, Assistant Attorney General and David M. Cohen, Director. Also on the brief were Lorraine Lewis, General Counsel, and Steven E. Abow, Office of the General Counsel, Office of Personnel Management, Washington, DC, of counsel.

Philip J. Simon, Kator, Scott & Heller, Washington, DC, argued for respondent, Ethel D. Briggs. With him on the brief was Joseph B. Scott.

Melissa A. Mehring, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent, Merit Systems Protection Board. With her on the brief were Mary L. Jennings, Acting General Counsel and David C. Kane, Assistant General Counsel.

Before MICHEL, Circuit Judge, SKELTON, Senior Circuit Judge, and PLAGER, Circuit Judge.

Opinion for the court filed by Circuit Judge MICHEL. Concurring opinion filed by Circuit Judge PLAGER.

MICHEL, Circuit Judge.

The Director of the Office of Personnel Management (OPM), with our prior approval, 1 appeals from the Merit Systems Protection Board's (Board) denial of its petition requesting reversal of the Board's January 1994 decision in the case of Briggs v. National Council on Disability, 60 M.S.P.R. 331 (1994). In the unpublished December 1994 order from which the OPM appeals, 65 M.S.P.R. 509 (1994) (table), the Board upheld the Administrative Judge's (AJ) remand decision applying its January 1994 decision and concluding both that the Board had jurisdiction over Ethel D. Briggs' appeal and that the National Council on Disability (Council) had removed her without observing the procedural requirements provided by 5 U.S.C. § 7513(b). 2 The appeal was submitted for decision after oral argument on February 6, 1996. Because we conclude that the Board had jurisdiction over Briggs' appeal from her removal by the Council, we affirm.


On November 12, 1992, the Council removed Briggs from her position as the Council's Executive Director, a position she had occupied since April 9, 1990. She appealed her removal to the Board a month later.

In her April 1993 initial decision, the AJ concluded that the Board did not have jurisdiction over Briggs' appeal. Specifically, after reviewing regulatory positions that the OPM had taken in both the Federal Personnel Manual and regulations implementing the Civil Service Due Process Amendments Act of 1990, Pub.L. No. 101-376, 104 Stat. 461 (codified in 5 U.S.C.) (Due Process Amendments), the AJ concluded that "[t]he Board lacks jurisdiction over this appeal because the statutory provision under which [Briggs] was appointed (29 U.S.C. § 783(a)(1)), excluded her appointment from coverage [as an 'employee'] under 5 U.S.C. § 7511, and, for that reason, her removal can be taken without regard to civil service laws."

Briggs petitioned the full Board for review. In its published January 1994 decision, the Board granted Briggs' petition and, reversing the AJ's decision, concluded that it had jurisdiction over her appeal. The Board began its analysis by holding that, due to the changes to the statutory definition of "employee" wrought by the Due Process Amendments, Briggs was an "employee" as defined by 5 U.S.C. § 7511(a)(1)(C)(ii). 60 M.S.P.R. at 333. The Board then noted that Briggs had been appointed pursuant to the authority given the Council in 29 U.S.C. § 783(a)(1), which states, in relevant part, that the Council "may appoint, without regard to the provisions of Title 5 governing appointments in the competitive service, or the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, an Executive Director to assist the National Council to carry out its duties." Id. at 334 (quoting 29 U.S.C. § 783(a)(1)).

The Council contended that the exclusions from title 5 set forth in section 783(a)(1) took the Executive Director's position outside the scope of section 7511(a). It drew support for this position from the regulations that the OPM had promulgated to implement the Due Process Amendments. Specifically, according to 5 C.F.R. § 752.401(d)(12), the definition of "employee" found at section 7511(a) does not extend to "[a]n employee whose agency or position has been excluded from the appointing provisions of title 5, United States Code, by separate statutory authority in the absence of any provision to place the employee within the coverage of chapter 75 of title 5, United States Code." The Council argued that applying this regulatory guideline to the terms of section 783(a)(1) leads to the conclusion that Briggs' position falls outside the statutory definition of "employee" at section 7511(a). The Board disagreed.

According to the Board, the effect of section 783(a)(1)'s exclusion of the Executive Director's position from the provisions of title 5 governing appointments in the competitive service "means only that the position is in the excepted service." 60 M.S.P.R. at 333. As a result, the Board concluded, the OPM regulation directed to positions generally excluded from title 5's appointing provisions, rather than from competitive service provisions alone, was simply not applicable to Briggs' case. Id. On this view, section 783(a)(1) did nothing to take Briggs outside the scope of the otherwise applicable definition of "employee" found at section 7511(a). Unable to assess the merits of the Council's secondary contention that it had excluded the Executive Directorship from chapter 75 of title 5 by designating it a "policy" position pursuant to 5 U.S.C. § 7511(b)(2)(C), the Board remanded the case to the AJ for further proceedings. Id. at 336.

In its May 1994 remand decision, the AJ found that the Council had "never made a determination that [Briggs'] position was a confidential, policy-making, policy-determining, or policy-advocating position" and thus excluded from the definition of "employee" in section 7511(a). In addition, the AJ found that, even if the Council had made such a determination, it "never communicated that fact to" Briggs. On the basis of these findings, the AJ concluded that Briggs was not excluded from the definition of "employee" in section 7511(a), and that the Board had removed her without following the applicable merit systems procedural requirements. Briggs was ordered reinstated with back pay.

The Council petitioned the full Board for review. In July 1994, the OPM filed a notice of intervention with the Board pursuant to 5 U.S.C. § 7701(d)(1). 3 In its intervention petition, the OPM challenged the Board's January 1994 decision, arguing that, according to the OPM's interpretation of the Due Process Amendments and Congress' intent in enacting them, a civil service position is excluded from the protections of title 5 in general if the statute creating that position excludes it from both the competitive service appointment and pay and classification provisions of title 5. Under this approach, section 783(a)(1) by its terms excludes Briggs' position from the coverage extended by the Due Process Amendments.

In its unpublished December 1994 order, the Board denied the Council's petition for review and the OPM's petition to intervene. With regard to the OPM's intervention, the Board stated that the OPM "has filed a brief in support of the [Council's] petition ... and we have considered [it] in our adjudication of this appeal." The Board then denied the Council's petition, simply noting that it "did not meet the criteria for review set forth at 5 C.F.R. § 1201.115," and ordered the Council to reinstate Briggs with back pay.

The OPM petitioned this court for review of the Board's decisions on January 9, 1995. We granted the petition for review on two questions: (a) whether the Board erred in failing to issue a published decision expressly addressing each of the OPM's contentions as intervenor; and (b) whether the Board erred in concluding that Briggs is an "employee" under section 7511(a)(1)(C)(ii).


The scope of the Board's jurisdiction presents a question of law that we review de novo. Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1398 (Fed.Cir.1994).

The Board held, and all the parties agree, that Briggs falls within the definition of "employee" found at 5 U.S.C. § 7511(a)(1)(C)(ii). They differ, however, as to whether, despite falling within this definition of "employee," Briggs is otherwise excluded from the procedural protections and appeal rights provided by chapter 75 of Title 5, and thus whether the Board has jurisdiction over her appeal. The OPM contends that the statute that creates the Executive Director's position, 29 U.S.C. 783(a)(1), has the effect of excluding Briggs from the expansive definition of "employee" found in section 7511(a) because it allows the Council to appoint the Executive Director "without regard to the provisions of Title 5 governing appointments in the competitive service, or the provisions ... of such title relating to classification and General Schedule pay rates." Briggs contends, in response, that the OPM has not succeeded in refuting the Board's basic conclusion that the two sections alleged to conflict, 783(a)(1) and 7511(a)(1)(C)(ii), are easily reconciled and plainly confer Board jurisdiction over Briggs' appeal.

We recently had occasion to address a similar question regarding the effect of the Due Process Amendments on the Board's jurisdiction in Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed.Cir.1995). The appellant in Todd, like Briggs, fell within the definition of employee at section 7511(a)(1)(C)(ii). Id. at 1576 & n. 3. The statute under which Todd was hired, however, gave the...

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