Mitchell v. Merit Sys. Prot. Bd.

• Decision Date: 15 January 2014
• Docket Number: No. 2013–3056.,2013–3056.
• Parties: Amy J. MITCHELL, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

741 F.3d 81

Amy J. MITCHELL, Petitioner,

v.MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 2013–3056.

United States Court of Appeals,Federal Circuit.

Jan. 15, 2014.

Kristina Caggiano, Duane Morris LLP, of Washington, DC, argued for petitioner. With her on the brief was Matthew C. Mousley, of Philadelphia, Pennsylvania.

Michael A. Carney, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief was Bryan G. Polisuk, General Counsel.

Before PROST, REYNA, and TARANTO, Circuit Judges.

Opinion for the court filed by Circuit Judge TARANTO.

Dissenting opinion filed by Circuit Judge PROST.

TARANTO, Circuit Judge.

This case involves a jurisdictional limit on the authority of the Merit Systems Protection Board to review an agency's removal of a worker from her job. In late 2008, the Department of Justice hired Amy Mitchell as an Assistant United States Attorney. She began working while the required background investigation took place. When the investigation concluded about seven months later, the Department issued Ms. Mitchell a form stating that her appointment was subject to a two-year trial period beginning August 2, 2009. The Department fired her effective July 29, 2011, a few days before the two-year period ended. She appealed her removal to the Board.

The Board may hear Ms. Mitchell's appeal only if she was an “employee” as an Assistant United States Attorney. The statute defines “employee” as someone “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.” 5 U.S.C. § 7511(a)(1)(C)(ii). Ms. Mitchell was an employee under that definition if the time during which her background check was pending counted toward the required “2 years of current continuous service.” The Board concluded that it did not, on the ground that Ms. Mitchell's service as an Assistant United States Attorney before August 2, 2009, was under a “temporary appointment,” not “under other than a temporary appointment.” The Board dismissed the appeal. We reverse and remand for further proceedings.

Background

Ms. Mitchell began working as a government attorney in 1998, when she became a lawyer for the Social Security Administration. In 2006, the Department of Justice appointed her as a Special Assistant United States Attorney for the Northern District of Texas—a one-year appointment during which she remained an employee of, and continued to be paid by, the Social Security Administration. The Department twice extended that appointment, and she served for just over two years in the Special Assistant position.

Effective December 21, 2008, the Department hired Ms. Mitchell as an Assistant United States Attorney in the same office. It issued a Standard Form 50–B (Notification of Personnel Action) documenting the appointment. As authority for the appointment, the form invoked 28 U.S.C. § 542, which authorizes Assistant United States Attorney appointments generally.The form also stated that the appointment was not to exceed 18 months, was “temporary” because of the pending background investigation, and was “subject to” the successful completion of that investigation. The background check concluded in late July 2009. In early August 2009, the Department provided Ms. Mitchell another Standard Form 50–B, again citing 28 U.S.C. § 542 as legal authority for the personnel action. This time, the “Remarks” section stated that Ms. Mitchell was subject to a two-year trial period beginning August 2, 2009, during which she could be removed without cause or appeal rights. The Department fired Ms. Mitchell effective July 29, 2011, days before the two-year period was to end, without notice or an opportunity to respond.

Ms. Mitchell promptly filed an appeal at the MSPB. In February 2012, the administrative judge dismissed the appeal for lack of jurisdiction, concluding that Ms. Mitchell was not an “employee” within the meaning of 5 U.S.C. § 7511(a) and therefore did not have the right to appeal. Ms. Mitchell filed a petition for review to the full Board, which denied her relief. She now appeals to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).

Discussion

There is no dispute that very nearly two years' worth of Ms. Mitchell's service as an Assistant United States Attorney—from August 2, 2009, to July 29, 2011—was “under other than a temporary appointment limited to 2 years or less.” 5 U.S.C. § 7511(a)(1)(C)(ii). We must decide whether she held a “temporary appointment limited to 2 years or less” during the pendency of her background check in the months before August 2009. If she did, then those seven-plus months do not count toward the required “2 years of current continuous service,” leaving her just a few days shy of the two-year threshold. If she did not, then she worked for more than two years in the same or similar positions and she comes within the statutory definition of an “employee” who may appeal to the Board. Making that “legal determination” de novo, Roy v. Merit Systems Protection Board, 672 F.3d 1378, 1380 (Fed.Cir.2012), we conclude that the second view is the better one.¹

A

Title 5 limits the Board's jurisdiction over federal workers' appeals based on both the nature of the personnel action being contested and the employment status of the individual complainant. This case is about the latter. An “employee” has the right to appeal certain adverse actions to the Board. 5 U.S.C. §§ 7701(a), 7512, 7513(d). Section 7511 defines what “employee” means for such purposes. Id. § 7511(a). (That definition modifies, for adverse actions, the general definition of a federal civil-service “employee” set out in 5 U.S.C. § 2105.) It is undisputed that, for Ms. Mitchell, as a person in the “excepted service” not eligible for a preference, qualification as an “employee” depends on whether, upon her July 2011 firing, 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.” Id. § 7511(a)(1)(C)(ii); Van Wersch v. Dep't of Health & Human Servs., 197 F.3d 1144, 1149–50 (Fed.Cir.1999) (discussing 1990 addition of provision). To calculate the length of Ms. Mitchell's “current continuous service,” we must ask whether she was in a “temporary appointment limited to 2 years or less” during her first seven-plus months as an Assistant United States Attorney, starting in December 2008.

Our answer starts with the text, where our task is to “give effect, if possible, to every clause and word of [the] statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883). That principle counsels against reading “temporary” to have no meaning beyond “limited in time” or “for a limited period.” Such a reading would effectively erase the term from the provision: the result would be the same as if the statute referred simply to “other than a[n] appointment limited to 2 years or less.” The word “temporary” should be given independent meaning, if possible.

Several sources might provide such meaning, but the first and most natural place to look is in regulations of the agency charged with implementing the statute, OPM. See5 U.S.C. § 7514. It makes sense for Congress to include the word “temporary” and allow its definition to depend, at least in part, on OPM determinations. In fact, the predominant and longstanding use of the word “temporary” in the context of federal appointments is to refer to appointments of one year or less.

An OPM excepted-service regulation states:

[W]hen agencies elect to make temporary, intermittent, or seasonal appointments in Schedule A, B, C, or D, those terms have the following meaning: (1) Temporary appointments, unless otherwise specified in a particular Schedule A, B, C, or D exception, are made for a specified period not to exceed 1 year and are subject to the time limits in paragraph (b) of this section. Time-limited appointments made for more than 1 year are not considered to be temporary appointments, and are not subject to these time limits.

5 C.F.R. § 213.104(a). When OPM promulgated the regulation, it made clear that it was newly making uniform a one-year standard for “temporary” appointments that already appeared in OPM regulations. The first sentence of the “Summary” announced that OPM was “revising its regulations governing use of temporary appointments ( i.e., appointments limited to 1 year or less ) to set a uniform service limit for such appointments in both the competitive and the excepted service at 1 year with no more than one 1–year extension (24 months total service).” 59 Fed.Reg. 46,895–01 (Sept. 13, 1994) (emphasis added); see Stern v. Dep't of the Army, 699 F.2d 1312, 1313 (Fed.Cir.1983) (“It was a temporary appointment (i.e., one year or less,5 C.F.R. § 316.401 (1982)) ....”) (emphasis added). This understanding has persisted. See, e.g.,63 Fed.Reg. 63,781, 63,783 (Nov. 17, 1998) (“Excepted appointments not-to-exceed 1 year are defined in 5 CFR 213.104(a)(1) as temporary and are subject to the maximum time limits [of] 5 CFR 213.104(b)(1).”).

OPM has long distinguished “temporary” appointments from others—given labels like “term” and “time-limited”—made for different but still limited periods. For example, when adding the last sentence of 5 C.F.R. § 213.104(a), which refers to “[t]ime-limited appointments,” the agency explained both that “[t]he existing regulations provide that if the appointments are for 1 year or less, by definition, they are temporary appointments” and, in addition, “that agencies continue to have the ability to make appointments with time limits of more than 1 year [and that t]hese...