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MSPB Rejects Continuing Employment Contract Theory for Adverse Action Appeals
Practical Law Legal Update w-005-2725 (Approx. 5 pages)
MSPB Rejects Continuing Employment Contract Theory for Adverse Action Appeals
by Practical Law Labor & Employment
| Published on 09 Jan 2017 • USA (National/Federal) |
In Winns v. United States Postal Service, the Merit Systems Protection Board (MSPB) held that a federal employee who worked in a series of temporary, time-limited appointments could not pursue an adverse action appeal of his termination under a "continuing employment contract" theory because he was not an employee under Title 5, Chapter 75.
On January 4, 2017, in Winns v. United States Postal Service, the Merit Systems Protection Board (MSPB) rejected the "continuing employment contract theory," holding that a federal employee who worked in a series of temporary, time-limited appointments could not pursue an adverse action appeal of his termination because he did not have the minimum length of employment to have Chapter 75 appeal rights. The MSPB overruled its 1984 decision in Roden v. Tennessee Valley Authority, which adopted the continuing employment contract theory. ( (M.S.P.B. Jan. 4, 2017).)
Background
Harris Winns worked for the US Postal Service (USPS) in a series of temporary, limited time appointments, each lasting less than one year and separated by a break of at least several days. In November 2014, while an appointment was still in progress, the USPS terminated Winns's employment.
Winns filed an appeal with the MSPB challenging his termination under 5 U.S.C. Chapter 75 and also claimed that he was retaliated against for whistleblowing. An administrative judge dismissed the Chapter 75 appeal for lack of jurisdiction based on Winns's failure to raise a nonfrivolous allegation that he had completed at least one year of continuous service with USPS at the time he was terminated.
Winns filed a petition for review of the administrative judge's decision, arguing that he had appeal rights under the "continuing employment contract" theory adopted in the MSPB's decision in Roden (25 M.S.P.R. 363, 367-68 (1984). The MSPB denied Winns's petition without addressing his arguments regarding Roden. After Winns appealed the MSPB's decision to the Federal Circuit, the MSPB requested that the matter be remanded to the MSPB so that it could address whether the Roden decision is still valid. The Federal Circuit granted the MSPB's remand request.
Outcome
The MSPB:
- Affirmed its initial decision that the MSPB lacks jurisdiction over Winns's appeal.
- Overruled its 1984 decision in Roden as well as subsequent decisions that relied on the "continuing employment contract" theory adopted by the MSPB in Roden.
- Held that the "continuing employment contract" theory adopted by the MSPB in Roden does not provide a basis to:
- establish that an employee has one year of "current continuous service" in the same or similar positions as provided by 5 U.S.C. Chapter 75; or
- confer jurisdiction on the MSPB for an adverse action appeal.
The MSPB noted that:
- Only an employee as defined in Chapter 75 can appeal an adverse action to the MSPB (5 U.S.C. § 7511(a)(1); Mathis v. U.S. Postal Service, 865 F.2d 232 (Fed. Cir. 1988)).
- A preference-eligible USPS employee who has completed "1 year of current, continuous service" in the same or similar positions has a right to appeal an adverse action to the MSPB (5 U.S.C. § 7511(a)(1)(B)(ii)).
- In Roden, the MSPB held that a preference-eligible employee with multiple temporary appointments separated by brief service breaks established MSPB jurisdiction over his appeal under a theory that the agency entered into a continuing employment contract with the employee rendering the employee's service "continuous" under Section 7511(a)(1)(B) (25 M.S.P.R. at 365, 367)).
- Although Title 5 does not define "current continuous service," a regulation promulgated by the Office of Personnel Management (OPM) after the Roden decision defined the term "current continuous employment" as "a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday" (5 CFR § 752.402).
- Even if the MSPB were to find that Congress has not expressed its intent on the meaning of "current continuous service," OPM's regulatory interpretation of "current continuous service" is:
- reasonable and consistent with the statute; and
- entitled to Chevron deference as a permissible construction of the statute (Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984)).
- Contrary to what the MSPB held in Roden, its jurisdiction for adverse action appeals only includes appeals by "employees" as defined by Section 7511(a)(1). Parties cannot confer jurisdiction through a contract or an agreement.
Practical Implications
The MSPB's decision in Winns invalidates the "continuing employment contract" theory as a basis for the MSPB to have jurisidiction over an adverse action appeal for federal employees who do not have one year of "current continuous service" in the same or similar positions. As a result, temporary federal employees filling time-limited appointments separated by breaks (even when the time-limited appointments cumulatively add up to more than one year of service) may not challenge adverse actions taken against them by federal agencies.