Roche v. Merit Systems Protection Bd.

Decision Date04 March 2010
Docket NumberNo. 2009-3111.,2009-3111.
Citation596 F.3d 1375
PartiesChristopher D. ROCHE, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Kevin A. Sills, National Air Traffic Controllers Association, of Washington, DC, argued for petitioner. With him on the brief was Marguerite L. Graf.

Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were B. Chad Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Before LOURIE, DYK, Circuit Judges, and KENDALL,* District Judge.

KENDALL, District Judge.

Petitioner Christopher D. Roche ("Roche"), a former employee of the Federal Aviation Administration ("FAA"), appeals from a final judgment of the Merit Systems Protection Board ("the Board") dismissing his case for lack of jurisdiction. Because we find that the Board did not err in applying the definition of "employee" set forth in 5 U.S.C. § 7511, and Roche does not dispute that he worked for too little time to qualify as an employee under that definition, we affirm.


Roche began his employment as an Air Traffic Control Specialist with the FAA on February 16, 2006. On June 28, 2007, the FAA sent Roche a Notice of Proposed Removal from federal service on the grounds that he had inappropriately touched a female co-worker, exposed his genitalia to the same female co-worker, and made sexually suggestive gestures in front of several co-workers. Roche's attorney sent a letter responding to the notice. Upon further investigation, the FAA found the allegations against Roche supported by the evidence and informed him that he would be removed from his position on September 1, 2007. Roche's employment with the FAA lasted a total of 562 days, or approximately 1.55 years.

The FAA's letter informing Roche of his impending removal notified him that he could appeal its decision in one of three ways: through the contractual grievance procedure available to members of the National Air Traffic Controllers Association, through the FAA's internal personnel-action review process, or by appeal to the Board. Roche filed a timely appeal with the Board on September 20, 2007, and an Administrative Judge ("AJ") conducted a three-day hearing in his case between December 4, 2007 and December 6, 2007.

On April 25, 2008, before reaching a final decision, the AJ issued an order to show cause as to why Roche's appeal should not be dismissed for lack of jurisdiction because Roche does not fall under the definition of employee set forth in 5 U.S.C. § 7511. Roche responded with many of the same arguments he now presents as to why § 7511 does not apply to his case, including the unique nature of the FAA's personnel system and the narrow coverage of Title 5 of the United States Code ("Title 5") with respect to FAA employees. In the alternative, Roche maintained that he needed only one year of current continuous service to qualify as an employee under § 7511, both because Air Traffic Control Specialist should be considered a "competitive service" position under § 7511(a)(1)(A), and because his service in the Gulf War qualified him as "preference eligible in the excepted service" under § 7511(a)(1)(B). In a separate response to the AJ's show cause order, the FAA supported Roche's position that Title 5's definitional provisions do not apply to FAA employees, but disagreed that Roche qualifies as preference eligible or as a member of the competitive service.

On May 30, 2008, the AJ issued an initial decision applying § 7511 and dismissing Roche's appeal for lack of jurisdiction. The AJ found that Roche's employment did not constitute competitive service, that he did not qualify for preference eligible status, and that he did not work for long enough to qualify as an excepted service employee. Roche appealed the AJ's initial decision, and the National Air Traffic Controllers Association filed an amicus curiae brief in support of Roche's position.

The full Board affirmed on December 8, 2008, determining that the definitional provisions in § 7511 apply to Roche. In so holding, the Board relied on its own finding in prior cases that § 7511 applies in FAA removal appeals, as well as this Circuit's indication in Coradeschi v. Department of Homeland Security, 439 F.3d 1329, 1332 (Fed.Cir.2006), that an individual appealing to the Board under 49 U.S.C. § 40122 must meet the definition of employee in § 7511. If it were instead to apply the FAA's definition of employee, the Board reasoned that a larger category of individuals would be able to appeal than could have appealed as of March 31, 1996, and Congress expressed a clear intent in 49 U.S.C. § 40122(g)(3) to restore the Board's jurisdiction over only those individuals who could have appealed as of March 31, 1996. The Board then rejected Roche's alternative arguments that he qualifies as a competitive service employee and that he is entitled to preference eligible status. Because it found that Roche does not qualify as an employee under § 7511, the Board dismissed his appeal for lack of jurisdiction.

This appeal followed.1 The court has jurisdiction over Roche's petition pursuant to 5 U.S.C. § 7703.

I. Standard of Review

This court must affirm the Board's decision unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulating having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c)(1)-(3). The court reviews whether the Board has jurisdiction over an appeal de novo. See Coradeschi, 439 F.3d at 1331 (Fed.Cir.2006) (citing Butler v. Soc. Sec. Admin., 331 F.3d 1368, 1371-72 (Fed.Cir.2003)).

II. Statutory Background

In order to "provide for greater flexibility in the hiring, training, compensation, and location" of FAA employees, 49 U.S.C. § 40122(a), Congress established an FAA Personnel Management System as part of the 1996 Department of Transportation and Related Agency Appropriations Act ("DOT Act"), Pub.L. No. 104-50, § 347, 109 Stat. 436, 460 (1995) (codified at 49 U.S.C. § 40122). The terms of the original DOT Act exempted all but seven provisions of Title 5 from the Personnel Management System:

(b) The provisions of title 5, United States Code, shall not apply to the new personnel management system developed and implemented pursuant to subsection (a), with the exception of—

(1) section 2302(b), relating to whistleblower protection;

(2) sections 3308-3320, relating to veterans' preference;

(3) section 7116(b)(7), relating to limitations on the right to strike;

(4) section 7204, relating to antidiscrimination;

(5) chapter 73, relating to suitability, security, and conduct;

(6) chapter 81, relating to compensation for work injury; and

(7) (2) chapters 83-85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage.

Pub.L. No. 104-50, § 347, 109 Stat. 436, 460 (1995). Because this list did not include the Board's jurisdictional grant in Chapter 77 of Title 5, this court held in two decisions that FAA employees could no longer appeal to the Board. See Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1278-79 (Fed.Cir.1999) (the Board lacked jurisdiction to hear whistleblower claims by FAA employees who were otherwise covered by federal whistleblower protection statute); Allen v. Merit Sys. Prot. Bd., 127 F.3d 1074, 1076 (Fed.Cir.1997) (the Board lacked jurisdiction to hear an FAA employee's appeal of removal).

Dissatisfied with the DOT Act's foreclosure of appeal rights to the Board, Congress passed the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("the Ford Act") in 2000, which restored the Board's jurisdiction to hear appeals from FAA employees. See Pub.L. No. 106-181, §§ 307(a), 308(b), 114 Stat. 61 (2000) (codified as amended 49 U.S.C. § 40122(g)(2)(H) & (g)(3)). The Ford Act added an eighth category to the list of Title 5 provisions still applicable to the FAA's Personnel Management System. See 49 U.S.C. § 40122(g)(2)(H) (listing "sections 1204, 1211-1218, 1221, and 7701-7703, relating to the Merit Systems Protection Board" as a new "exception" to the general rule that "provisions of title 5 shall not apply to the new personnel management system"). The Ford Act then clarified in a subsequent provision that "an employee of the Administration may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996." 49 U.S.C. § 40122(g)(3). Neither the Ford Act nor the DOT Act directly addresses what definition of "employee" courts should use in determining the Board's jurisdiction over appeals by FAA employees.

III. Applicable Definition of "Employee"

Roche's appeal is unique in that the propriety of the Board's decision declining to exercise jurisdiction hinges on the applicable definition of the word "employee"— and, more specifically, whether the FAA's internal definition or § 7511's definition should apply. Under the FAA's definition, personnel who are "not serving a probationary or trial period, or ... [have] served more than one year of service on a temporary appointment" qualify as employees.2 Under § 7511, on the other hand, an individual in an excepted service position like Roche3 only qualifies as an employee if he "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). Because the parties do not dispute that Roche, who worked for the FAA for 1.55 years, qualifies as an employee under the FAA's regulations but not under § 7511's definition, the Board was correct to decline...

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