Mouton-Miller v. Merit Sys. Prot. Bd.

• Decision Date: 19 January 2021
• Docket Number: 2020-1266
• Citation: 985 F.3d 864
• Parties: Deborah N. MOUTON-MILLER, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent Department of Homeland Security, Intervenor
• Court: U.S. Court of Appeals — Federal Circuit

985 F.3d 864

Deborah N. MOUTON-MILLER, Petitioner

v.MERIT SYSTEMS PROTECTION BOARD, Respondent

Department of Homeland Security, Intervenor

2020-1266

United States Court of Appeals, Federal Circuit.

Decided: January 19, 2021

Danielle B. Obiorah, Obiorah Fields, LLC, Jonesboro, GA, for petitioner.

Calvin M. Morrow, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by Katherine Michelle Smith, Tristan L. Leavitt.

Sonia W. Murphy, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for intervenor. Also represented by Jeffrey B. Clark, Tara K. Hogan, Robert Edward Kirschman, Jr.

Before Prost, Chief Judge, Taranto and Chen, Circuit Judges.

Taranto, Circuit Judge.

Deborah Mouton-Miller was promoted from her supervisory position at the United States Postal Service to a different supervisory position at the Department of Homeland Security, subject to a one-year probationary period. After less than a year, Homeland Security informed Ms. Mouton-Miller that her performance had been unsatisfactory and that she was being reassigned from a supervisory to a nonsupervisory role. Ms. Mouton-Miller appealed that decision to the Merit Systems Protection Board, which dismissed Ms. Mouton-Miller's appeal, determining that it lacked jurisdiction to review the agency's action because the challenged agency action was excluded from the Board's jurisdiction by 5 U.S.C. § 7512(C). See Mouton-Miller v. Dep't of Homeland Security , No. AT-0752-19-0643-I-1, 2019 WL 4419912 (M.S.P.B. Sept. 12, 2019). We agree with the Board and therefore affirm.

I

Before April 2017, Ms. Mouton-Miller worked for the Postal Service as an Audit Manager. J.A. 36. Her position was classified as GG-0511-14, step 8, and she received a salary of $128,081. J.A. 34. On April 2, 2017, Homeland Security's Office of the Inspector General hired Ms. Mouton-Miller and promoted her to the position of Supervisory Auditor. J.A. 34; J.A. 36. Ms. Mouton-Miller's position with Homeland Security was classified as GS-0511-14, step 8, with an initial pay rate of $142,367. J.A. 34. There was no break between her service with the Postal Service and her service with Homeland Security.

Ms. Mouton-Miller's position as Supervisory Auditor with Homeland Security was subject to a one-year supervisory probationary period before becoming final. J.A. 34. On March 29, 2018—less than one year after beginning her position with the agency—Ms. Mouton-Miller received notice from the Inspector General that she had "performed unsatisfactorily" and therefore "failed to complete [her] supervisory probationary period." Id. As a result, she was reassigned to the nonsupervisory position of Communications Analyst, GS-0301-14, step 7, with a salary of $129,937. Id.

Ms. Mouton-Miller appealed the agency's action to the Board, in what soon became an adverse-action appeal under 5 U.S.C. Chapter 75.¹ Homeland Security moved to dismiss her appeal, arguing that the Board lacked jurisdiction and that, to the extent jurisdiction existed, Ms. Mouton-Miller's appeal was moot. Specifically, Homeland Security argued that Ms. Mouton-Miller's reassignment to a nonsupervisory position did not amount to an appealable adverse action under the pertinent provisions of 5 U.S.C. Chapter 75, 5 U.S.C. §§ 7511 – 15. See J.A. 25–27. Even if it did, Homeland Security continued, the only agency action that the Board would have jurisdiction to review would be the reduction in Ms. Mouton-Miller's "step" (from 8 to 7) in her reassignment from a supervisory to nonsupervisory position. J.A. 27–30. As to that, however, Homeland Security acknowledged that Ms. Mouton-Miller's "step" should not have been reduced during her reassignment but stated that it was already in the process of awarding her "all related back pay and/or other employment benefits connected to the correction of her step." J.A. 36. Therefore, to the extent that the Board had jurisdiction over the step-reduction action, Ms. Mouton-Miller's appeal was moot because her injury was already being redressed. J.A. 27–30.

On August 13, 2019, the Board issued an Order Finding Jurisdiction, explaining that—under 5 U.S.C. § 7512(4) —Ms. Mouton-Miller suffered a reduction in pay, which constituted an adverse action that the Board had jurisdiction to review. J.A. 39. Three days later, however, the Board issued an Order to Show Cause stating that it was "inclined to dismiss for lack of jurisdiction" for a different reason. J.A. 75. Specifically, it questioned Homeland Security's assertion that Ms. Mouton-Miller's supervisory service as an Audit Manager with the Postal Service could be "tacked" to her supervisory service with Homeland Security under 5 U.S.C. § 3321, which would result in Ms. Mouton-Miller completing the one-year supervisory probationary period. J.A. 75. Section 3321—which is titled "Competitive service; probationary period"—governs probationary periods in the competitive service (for both nonsupervisory and supervisory appointments). See generally 5 U.S.C. § 3321. It first permits the President to "take such action ... as shall provide as nearly as conditions of good administration warrant for a period of probation—(1) before an appointment in the competitive service becomes final; and (2) before initial appointment as a supervisor or manager becomes final." Id. § 3321(a) (emphasis added). Section 3321(b) then provides:

(b) An individual—

(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and

(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section,

shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.

Id. § 3321(b). As the Board noted, § 3321 and its corresponding federal regulations refer to supervisory appointments made in the "competitive service," see J.A. 75; see also 5 C.F.R. §§ 315.901 – 315.909, whereas all positions in the Postal Service fall within the "excepted service," see J.A. 75; see also 5 U.S.C. § 2102(a)(1)(A) ; 39 U.S.C. §§ 201, 1001. Because the "excepted service" is distinct from the "competitive service," the Board questioned whether Ms. Mouton-Miller had in fact completed the required supervisory probationary period—and, thus, whether it had jurisdiction to review the agency's action. J.A. 75. It explained that "absent an agency policy which provides for tacking excepted supervisory service for purposes of completing a supervisory probationary period," it likely could not review Homeland Security's actions. Id.

In its initial Response to the Agency's Order to Show Cause, Homeland Security stated that there was no agency policy to tack excepted supervisory service on to competitive supervisory service for the purpose of completing a supervisory probationary period. J.A. 82, 85. On September 3, 2019, the Board ordered the agency to provide "its policy covering the supervisory probationary period under 5 C.F.R. §§ 315.901 – .909." J.A. 88.²

Homeland Security responded to the Board's order by stating that it did not "have its own written policy covering the supervisory probationary period under 5 C.F.R. §§ 315.901 – .909." J.A. 95, 102. Rather, the agency explained, it "uses the statutory requirements in 5 U.S.C. § 3321 and the regulatory requirements in 5 C.F.R. §§ 315.901 – .909 as the policy governing the supervisory probationary period for competitive service employees." Id. Accordingly, Homeland Security argued, the Board could not hear Ms. Mouton-Miller's appeal because 5 U.S.C. § 7512(C) states that the subchapter at issue, 5 U.S.C. §§ 7511 – 15,

does not apply to ... the reduction in grade of a supervisor or manager who has not completed the probationary period under section 3321(a)(2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager.

5 U.S.C. § 7512(C) ; see J.A. 96. Homeland Security acknowledged that it previously believed Ms. Mouton-Miller had satisfied the one-year supervisory probationary period because of her supervisory position with the Postal Service. J.A. 97, 104. But it changed its view upon discovering that all Postal Service employees are employees in the excepted service, id. , which meant that Ms. Mouton-Miller's position with the Postal Service did not constitute competitive service and her appeal was barred by § 7512(C).

Ms. Mouton-Miller argued that the "lack of an agency policy" as to the supervisory probationary period was not dispositive; rather, "the issue in [the] case" was whether she satisfied "the statutory definition of an employee pursuant to 5 U.S.C. § 7511." J.A. 114–15. Section 7511(a)(1) defines an employee as:

(A) an individual in the competitive service—

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

(ii) except as provided in section 1599e of title 10, who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less

5 U.S.C. § 7511(a)(1). Ms. Mouton-Miller argued that § 7511(a)(1)(A)(ii) conferred jurisdiction upon her appeal because the Board had previously interpreted "current continuous service" to include both excepted and competitive service. J.A. 116–17 (discussing McCrary v. Dep't of Army , 103 M.S.P.R. 266, ¶ 8 (2006), and Fitzgerald v. Dep't of Air Force , 108 M.S.P.R. 620 (2008) ). Thus, she concluded, her excepted service with the Postal Service should be tacked to her competitive service with Homeland Security, permitting the Board to review her appeal. Id.

The Board issued its initial decision on September 12, 2019. See Mouton-Miller , ...