The opinion
United States Court of Appeals
for the Federal Circuit
__________________________
RICKEY D. CARROW,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF VETERANS AFFAIRS,
Intervenor.
__________________________
2010-3061
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC3443070780-M-1.
___________________________
Decided: December 3, 2010
___________________________
GEOFFREY P. EATON, Winston & Strawn LLP, of
Washington, DC, argued for petitioner. With him on the
brief were GENE C. SCHAERR and LINDA K. LEIBFARTH.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
CARROW v. MSPB 2
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel. Of counsel was
JOYCE G. FRIEDMAN.
SCOTT T. PALMER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for intervenor. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR. Assistant Director.
__________________________
Before BRYSON, DYK, and MOORE, Circuit Judges.
BRYSON, Circuit Judge.
Rickey D. Carrow petitions for review of a decision of
the Merit Systems Protection Board, on remand from this
court, dismissing his appeal for lack of jurisdiction. We
affirm.
I
The facts of this case are set out in our opinion on Mr.
Carrow’s previous appeal to this court. Carrow v. Merit
Sys. Prot. Bd., 564 F.3d 1359 (Fed. Cir. 2009). In brief
summary, Mr. Carrow served for five years as an orthotist
for the Department of the Army. In 2006, he applied for
an orthotist-prosthetist position with the Department of
Veterans Affairs (“DVA”). During Mr. Carrow’s inter-
views for the job, the DVA informed him that the position
was in the excepted service and was subject to a proba-
tionary period. The probationary period would end when
Mr. Carrow completed the so-called “boarding” process,
i.e., when he was certified by the Orthotist-Prosthetist
Professional Standards Board. Mr. Carrow was selected
for the DVA position, and he began work under his new
3 CARROW v. MSPB
appointment in February 2007, without a break in service
from his prior position with the Army. Four months later,
however, the DVA terminated Mr. Carrow for “unaccept-
able performance issues.” See id. at 1361.
When Mr. Carrow sought to challenge his removal be-
fore the Merit Systems Protection Board, the administra-
tive judge who was assigned to his case ruled that
because Mr. Carrow was serving a probationary period in
his position with the DVA, the Board lacked jurisdiction
over his appeal. The administrative judge ruled that Mr.
Carrow had voluntarily accepted a temporary appoint-
ment under 38 U.S.C. § 7405(a)(1) and thus had forfeited
the Board appeal rights he had enjoyed in his previous
position with the Department of the Army. In the alter-
native, the administrative judge ruled that Mr. Carrow
was ineligible for appellate rights under 5 U.S.C. § 7511.
In that regard, the administrative judge ruled that be-
cause Mr. Carrow was a temporary, probationary, and
nonpreference eligible employee in the excepted service,
he was entitled to appeal to the Board only if he qualified
as an “employee” by satisfying the requirements of 5
U.S.C. § 7511(a)(1)(C)(ii). That provision defines a non-
preference eligible individual in the excepted service as an
“employee” if the individual “has completed 2 years of
current continuous service in the same or similar posi-
tions in an Executive agency under other than a tempo-
rary appointment limited to 2 years or less.” The
administrative judge ruled that Mr. Carrow could not
satisfy the requirement that he have completed two years
of current, continuous service in an executive branch
agency because he had not completed two years of service
within the DVA at the time of his removal. In the admin-
istrative judge’s view, the statute did not permit Mr.
Carrow to aggregate his service in the Department of the
Army with his service in the DVA because the statutory
CARROW v. MSPB 4
two years of service were required to be performed in the
same executive branch agency.
Mr. Carrow petitioned this court for review of the
Board’s decision. Although we upheld several of the
Board’s rulings, we concluded that the Board’s decision
was erroneous in certain respects. We therefore vacated
the Board’s dismissal order and remanded the case to the
Board for further proceedings.
At the outset, we upheld the administrative judge’s
findings that Mr. Carrow’s position in the DVA was a
temporary position pending board certification and that
he was a probationary employee at the time of his re-
moval. See Carrow, 564 F.3d at 1363-64. In light of the
administrative judge’s findings, we also rejected Mr.
Carrow’s argument that he was not adequately apprised
of the relevant terms and conditions of his appointment
within the DVA. Id. at 1364. Based on the administra-
tive judge’s findings and the administrative record, we
upheld the administrative judge’s conclusion that Mr.
Carrow knowingly accepted a temporary appointment in
the DVA under 38 U.S.C. § 7405(a)(1).
We disagreed with the Board’s analysis in two re-
spects, however. First, contrary to the ruling of the
administrative judge, we held that under 38 U.S.C. §
7403(f)(3) Mr. Carrow was entitled to the protections of
Chapter 75 of Title 5. Those protections include the right
to appeal to the Merit Systems Protection Board with
respect to “all matters relating to adverse actions.” We
therefore held that the administrative judge could not
dismiss Mr. Carrow’s appeal solely because he was ap-
pointed under 38 U.S.C. § 7405(a)(1). See Carrow, 564
F.3d at 1364-65. Second, we disagreed with the adminis-
trative judge’s conclusion that, even under Title 5, Mr.
5 CARROW v. MSPB
Carrow would not qualify as an “employee” because he
had not completed at least two years of “current continu-
ous service in the same or similar positions in an Execu-
tive agency under other than a temporary appointment
limited to 2 years or less.” 5 U.S.C. § 7511(a)(1)(C)(ii).
The administrative judge interpreted the term “an Execu-
tive agency” to require that the two years of continuous
service be within the same agency. However, we held
that under governing regulations issued by the Office of
Personnel Management, Mr. Carrow was entitled to
aggregate service credit in more than one agency as long
as his service with the two agencies was in “the same or
similar positions.” Carrow, 564 F.3d at 1365-66.
The remaining question before this court in the prior
appeal was whether Mr. Carrow had been employed for
two years “under other than a temporary appointment
limited to 2 years or less,” as required by 5 U.S.C.
§ 7511(a)(1)(C)(ii). We held that if he did not satisfy that
provision, he would not qualify as an “employee” entitled
to the civil service rights set forth in Title 5. Because the
administrative judge had not addressed that issue, we
remanded the case to the Board for further development
of that jurisdictional question.
Following the remand from this court, the full Board
in turn remanded the case to the administrative judge for
further adjudication. After making additional findings,
the administrative judge dismissed the appeal for want of
jurisdiction. The administrative judge first found that at
the time Mr. Carrow left his position with the Army and
entered into service with the DVA, he was informed that
his new position was a temporary position in the excepted
service, not in the competitive service, and that his ap-
pointment would be temporary pending the completion of
the boarding process. The administrative judge further
CARROW v. MSPB 6
found, however, that Mr. Carrow was not specifically
advised that his temporary appointment was limited to 13
months, i.e., that it was less than two years in length,
which is the statutory trigger for Mr. Carrow to qualify as
an “employee” under 5 U.S.C. § 7511(a)(1)(C)(ii). None-
theless, the administrative judge ruled that the DVA’s
failure to advise Mr. Carrow that his temporary appoint-
ment was for less than two years did not render his
decision to leave his position with the Army involuntary
and did not give the Board jurisdiction over his appeal.
In analyzing Mr. Carrow’s claim, the administrative
judge noted that the Board has held that when accepting
an appointment in a different agency, the employee is
responsible for determining the consequences of the
change of positions and it is “not incumbent on the new
employing agency to inform an employee of the conse-
quences of the change.” In that regard, the administra-
tive judge quoted the Board’s decision in Park v.
Department of Heath & Human Services, 78 M.S.P.R. 527,
535 (1998), which noted that a “new employing agency
may not possess and cannot be expected to have specific
knowledge of the terms of the potential employee’s previ-
ous employment,” and thus “[i]t should not have the same
obligation to advise the employee of all possible conse-
quences of changing positions.” Accordingly, the adminis-
trative judge concluded that the DVA had not breached
any duty it owed to Mr. Carrow and that he was not
entitled to a change in his appeal rights based on any
such breach.
II
Because he was not informed of the terms of his DVA
appointment that resulted in the loss of his Title 5 rights,
Mr. Carrow argues that his decision to accept the ap-
7 CARROW v. MSPB
pointment with the DVA was involuntary and thus inef-
fective. As a consequence, he argues, he continued to hold
the Title 5 rights that he enjoyed while he was employed
by the Department of the Army, and the DVA’s decision to
terminate him without granting him the procedures
afforded by Title 5 was contrary to law. Because his
termination was unlawful, he contends that he is entitled
to reinstatement to his DVA position with back pay
pending the application of the procedures mandated by
Title 5.
The dispositive flaw in Mr. Carrow’s argument is that
the Board lacks jurisdiction over his claim. Subchapter II
of Chapter 75 of Title 5 of the United States Code sets
forth certain protections to which a person with the status
of an “employee” is entitled when certain actions are
proposed against him, including removal. See 5 U.S.C.
§ 7511(a)(1), (b) (defining “employee” for subchapter II);
id. §§ 7511 (a)(2)-(5), 7512 (listing and defining the ac-
tions to which subchapter II applies); id. § 7513(b) (listing
the procedural protections for any “employee” against
whom such an action is proposed). In addition, subchap-
ter II gives such an “employee” the right to appeal from
such an action to the Merit Systems Protection Board. Id.
§ 7513(d).
The term “employee,” which is the statutory trigger
for an appeal to the Board from an adverse action such as
a disciplinary removal, is defined in 5 U.S.C.
§ 7511(a)(1). 1 The critical statutory language, for present
purposes, defines the term “employee” to include an
individual in the excepted service “who has completed 2
1 By regulation, a probationer who is removed dur-
ing his probationary period may appeal to the Board, but
only on limited grounds. See 5 C.F.R. § 315.806. That
regulatory route to appeal is not at issue in this case.
CARROW v. MSPB 8
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). Mr. Carrow acknowledges that at the
time of his removal he did not qualify as an “employee”
under that statutory language because he was serving
under a temporary appointment not to exceed 13 months.
Nor, at the time of his removal, did he qualify as an
“employee” under any of the other definitional provisions
of section 7511(a)(1). By the terms of the statute, then,
Mr. Carrow was not entitled to the procedural protections
of section 7513(b) or the right to appeal to the Board
under section 7513(d).
In an effort to bring his case within the jurisdiction of
the Board, Mr. Carrow relies on a line of cases from this
court holding that in certain instances an employee may
appeal to the Board from a resignation or retirement if
the employee can show that the resignation or retirement
was involuntary. See Middleton v. Dep’t of Def., 185 F.3d
1374, 1379 (Fed. Cir. 1999); Latham v. U.S. Postal Serv.,
909 F.2d 500, 502 (Fed. Cir. 1990); Covington v. Dep’t of
Health & Human Servs., 750 F.2d 937, 941-42 (Fed. Cir.
1984). The rationale underlying those cases is that a
resignation or retirement that is involuntary because it
was obtained by misleading or coercive conduct on the
part of the agency amounts to a constructive removal
action and thus falls within the provisions of subchapter
II allowing an employee to appeal to the Board from a
removal action. See Anderson v. Merit Sys. Prot. Bd., 12
F.3d 1069, 1071 n.4 (Fed. Cir. 1993) (“This court has held,
in short, that involuntary resignation is removal; and
removal does not strip an employee of the right to MSPB
review of the decision to terminate.”); Burgess v. Merit
Sys. Prot. Bd., 758 F.2d 641, 643 (Fed. Cir. 1985).
9 CARROW v. MSPB
That line of cases has no application in this case.
Those cases all involved claims by persons who were
statutory “employees” at the time of the action in ques-
tion. The only issue bearing on the Board’s jurisdiction
was whether those employees should be characterized as
having been “removed” as opposed to having resigned or
retired. In this case, it is indisputable that Mr. Carrow
was not an “employee” at the time he was removed from
his position at the DVA. He had previously been an
employee when he was employed with the Department of
the Army, but he is not seeking reinstatement to his
position with the Army or suggesting that the Army acted
improperly in some manner that induced him to leave his
position there. Instead, his argument is that the DVA
failed to give him complete information about the circum-
stances of his DVA appointment from which he might
have ascertained that, by accepting the DVA position, he
was giving up the rights granted to “employees” under
section 7513. Even if his factual allegations are true, his
legal argument fails because section 7513(d) does not give
the Board jurisdiction over an appeal from a removal by a
person who does not qualify as an “employee.” See Ander-
son, 12 F.3d at 1071 n.4 (in an appeal from an adverse
action against an appellant who does not qualify as a
statutory “employee,” the appellant may not invoke the
“involuntary resignation” theory of Board jurisdiction).
By statute, Mr. Carrow’s position with the DVA did not
carry Board appeal rights, and the DVA’s failure to advise
Mr. Carrow of the terms of his appointment does not
create appeal rights for positions as to which Congress
has not given the Board appellate jurisdiction. Mr. Car-
row has not suggested that there is any statutory or
regulatory requirement that he be given such notification,
nor does he point to any authority supporting his conten-
tion that, in the absence of such notification, he is entitled
as a matter of due process to retain his previous appeal
CARROW v. MSPB 10
rights in his new position. Accordingly, we hold that any
failure on the part of the DVA to provide full information
to Mr. Carrow regarding the terms of his employment
with the DVA did not give the Board jurisdiction over his
appeal seeking reinstatement to his position at the DVA.
The Board has reached essentially the same result in
similar cases, although it has followed a different line of
analysis. In Park v. Department of Health & Human
Services, supra, an employee transferred from a position
with one agency in which he enjoyed full appeal rights to
a position in a different agency in which he was required
to serve a probationary period. When the employee was
notified that he would be terminated during his proba-
tionary period, he sought to appeal to the Merit Systems
Protection Board. The employee argued, inter alia, that
he could not be treated as a probationary employee in his
new position because he had not been told that he would
have to serve a probationary period in that new position.
The Board noted that it had adopted a rule that the
employing agency must inform an employee of the effect
of a change in tenure when the employee relinquishes an
appointment having adverse action appeal rights to
accept another appointment within the same agency that
lacks such appeal rights. Park, 78 M.S.P.R. at 534, citing
Exum v. Dep’t of Veterans Affairs, 62 M.S.P.R. 344, 349-50
(1994). In such a case, the Board explained, an employee
who has not knowingly consented to the loss of appeal
rights is deemed not to have surrendered those rights
when accepting the new appointment within the same
agency. However, the Board held that when an employee
has left an appointment with one agency to accept an
appointment with another agency, “the situation is differ-
ent.” Park, 78 M.S.P.R. at 534. Because the new employ-
ing agency “may not possess and cannot be expected to
have specific knowledge of the terms of the potential
11 CARROW v. MSPB
employee’s previous employment,” it does not have an
obligation to inform the employee “of the effect of the
appointment on his Chapter 75 adverse action appeal
rights.” Id. at 535.
The administrative judge in this case relied on the
Park rule in holding that the DVA was not required to
inform Mr. Carrow that his appointment would result in
the loss of his appeal rights, and therefore Mr. Carrow
could not invoke those rights as a means of obtaining
Board review of his removal. Because the Park rule led
the Board to the same result that we reach in this case, it
is not necessary for us to decide whether the Board’s
analysis in this case (or in the Park line of cases) was
correct. We likewise have no occasion in this case to
approve or disapprove the Board’s rule in Exum and its
progeny that if an employee moves within the same
agency from a position with appeal rights to one lacking
appeal rights and the agency does not inform him of the
effect the move will have on his appeal rights, the em-
ployee will be deemed to have retained those rights. See
Rice v. Merit Sys. Prot. Bd., 522 F.3d 1311, 1317-18 (Fed.
Cir. 2008); Yeressian v. Dep’t of the Army, 112 M.S.P.R.
21, 27 (2009); Pagan v. U.S. Postal Serv., 111 M.S.P.R.
212, 215 (2009); Exum, 62 M.S.P.R. at 349-50.
For the foregoing reasons, we agree with the Board
that it lacked jurisdiction over Mr. Carrow’s appeal.
No costs.
AFFIRMED