The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 14
Docket No. NY-0752-15-0064-I-1
Jane Carol Malloy,
Appellant,
v.
Department of State,
Agency.
May 31, 2022
Jane Carol Malloy, Trenton, New Jersey, pro se.
Marianne Perciaccante, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed her adverse action appeal for lack of jurisdiction. For the reasons set
forth below, we GRANT the petition for review under 5 C.F.R. § 1201.115(b),
REVERSE the initial decision, and REMAND the appeal for further adjudication
consistent with this Opinion and Order.
BACKGROUND
¶2 On November 4, 1990, the agency appointed the appellant as a
nonpreference eligible to the excepted-service Technical Information Specialist
position, GG-12, at the United States Mission to the United Nations (USUN).
2
Initial Appeal File (IAF), Tab 9 at 13. The legal authority for the appointment
recorded in her Standard Form 50 (SF-50) was United States Code chapter 22,
section 287 (22 U.S.C. § 287). IAF, Tab 9 at 13. Section 287 of title 22 provides
for the President to appoint individuals to various positions at the United Nations
(U.N.). The appellant’s SF-50 remarks section also states: “Appointment without
regard to civil service and classification laws in accordance with Public Law 341
(Section 8) Amendment to the U.N. Participation Act of 1945.” Id. Section 8 of
the U.N. Participation Act is codified at 22 U.S.C. § 287e, which states:
There is hereby authorized to be appropriated annually to the
Department of State, out of any money in the Treasury not otherwise
appropriated, such sums as may be necessary for the payment by the
United States of . . . all necessary salaries and expenses of the
representatives provided for in section 287 of this title, and of their
appropriate staffs, including personal services in the District of
Columbia and elsewhere, without regard to the civil-service laws and
chapter 51 and subchapter III of chapter 53 of Title 5. . . .
22 U.S.C. § 287e.
¶3 In 2014, the agency suspended the appellant for 30 days on charges of
unprofessional behavior and disruptive behavior. IAF, Tab 14 at 44-58. The
appellant appealed the 30-day suspension as an adverse action under chapter 75,
arguing that the suspension was in retaliation for filing equal employment
opportunity complaints concerning alleged discrimination based on race, color,
and disability. IAF, Tab 1 at 5. The agency filed a motion to dismiss the appeal
for lack of jurisdiction. IAF, Tab 9. The administrative judge informed the
appellant in a show cause order that the Board may not have jurisdiction over her
adverse action appeal. IAF, Tab 24. The appellant responded to the order. IAF,
Tab 25.
¶4 Thereafter, the administrative judge issued an initial decision dismissing the
appeal for lack or jurisdiction. IAF, Tab 29, Initial Decision (ID) at 1, 13. In
doing so, she relied on a regulation issued by the Office of Personnel
Management (OPM), 5 C.F.R. § 752.401(d)(12), which states that “[a]n employee
3
whose agency or position has been excluded from the appointing provisions of
title 5, United States Code, by separate statutory authority” is excluded from
coverage of 5 U.S.C. chapter 75 unless there is a provision specifically placing
those employees under the protections of chapter 75. ID at 3; see 5 C.F.R.
§ 752.401(d)(12). 1 The administrative judge noted that OPM’s most commonly
used language to describe a statutory exclusion was “without regard to the
provisions of title 5, United States Code, governing appointments in the
competitive service” or “without regard to the civil-service laws.” ID at 3;
58 Fed. Reg. 13,191, 13,192 (Mar. 10, 1993). Given this language, the
administrative judge found that 22 U.S.C. § 287e constituted a separate statutory
authority which exempts USUN employees from the appointment provisions of
title 5. ID at 9. She also found that the appellant pointed to no statutory
provisions or any evidence that would specifically place her under the protections
of chapter 75 despite an initial exclusion. Id.
¶5 In arriving at this conclusion, the administrative judge also relied on Suzal
v. Director, U.S. Information Agency, 32 F.3d 574, 578-79 (D.C. Cir. 1994). In
Suzal, the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) was faced with a similar question of whether an appointment authority,
22 U.S.C. § 1474(1), excluded an employee appointed under that authority from
the civil service laws altogether. Suzal, 32 F.3d at 578-79. The court in Suzal
stated that “it would distort the statutory language to hold that people employed
‘without regard to the civil service . . . laws’ are actually covered by all the civil
service laws applicable to members of the excepted service.” Id. at 578.
1
OPM also has indicated in its comments to 5 C.F.R. § 752.401(d)(12) that, although
most statutory authorities only reference “appointments,” “all that is required for a
statutory exclusion from chapter 75 is a legislative exclusion from the appointing
requirements of title 5, United States Code, in the absence of any provision to place the
employee within the coverage of chapter 75 of title 5.” 58 Fed. Reg. 13,191, 13,192
(Mar. 10, 1993).
4
¶6 The appellant has filed a petition for review arguing that the Board should
reevaluate the dismissal for lack of jurisdiction and renewing her discrimination
and retaliation claims. Petition for Review (PFR) File, Tab 1 at 4. The agency
has filed a response to the appellant’s petition. PFR File, Tab 4. 2
ANALYSIS
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
to prove by preponderant evidence that her appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). A preponderance of the evidence is
that degree of relevant evidence that a reasonable person, considering the record
as a whole, would accept as sufficient to find that a contested fact is more likely
to be true than untrue. 5 C.F.R. § 1201.4(q).
¶8 It appears undisputed that the appellant fits within the statutory definition
of an employee under 5 U.S.C. § 7511(a)(1)(C), and thus is entitled to appeal
rights under chapter 75 unless otherwise excepted by statute. 3 The crux of this
case is whether the appellant’s appointing authority, 22 U.S.C. § 287e, excludes
2
After submitting its opposition to the appellant’s petition for review, PFR File, Tab 4,
the agency filed a motion for leave to file an additional pleading to alert the Board to a
decision by the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 6. The
agency, “in an abundance of caution,” sought to draw the Board’s attention to Lal v.
Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016), noting that the case
addressed a similar issue to the one currently before the Board and was issued after the
parties briefed the jurisdictional issue below. Id. at 5. The agency’s motion did not ask
the Board to do anything more than to consider Lal, which the Board has done.
Accordingly, we DENY the motion for leave to file an additional pleading as moot.
3
The record shows that the appellant was not serving a probationary or trial period
under an initial appointment pending conversion to the competitive service, IAF, Tab 1
at 1, Tab 25 at 11, and that she had completed at least 2 years of current continuous
service in the same or similar position with the agency as a permanent employee, IAF,
Tab 9 at 13, Tab 14 at 41, Tab 25 at 11, thereby establishing that she fits the statutory
definition of “employee” under 5 U.S.C. § 7511(a)(1)(C).
5
her from the protections of chapter 75. For the reasons set forth below, we find
that the appellant is not exempt from chapter 75 protections and that the Board
has jurisdiction over her adverse action appeal.
Section 287e of title 22 of the U.S. Code does not preclude the appellant’s
adverse action appeal.
¶9 In 1990, Congress enacted the Civil Service Due Process Amendments of
1990 (the Due Process Amendments), Pub. L. No. 101-376, 104 Stat. 461 (1990)
(codified in relevant part at 5 U.S.C. § 7511), which created administrative and
judicial appeal rights for nonpreference eligibles in the excepted service, such as
the appellant, that were not previously available to them under the Civil Service
Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978), which
gave limited administrative and judicial review rights to those in the competitive
service and preference eligibles in the excepted service. Lal v. Merit Systems
Protection Board, 821 F.3d 1376, 1379-80 (Fed. Cir. 2016). Despite providing
administrative and judicial appeal rights to nonpreference eligibles in the
excepted service generally, the Due Process Amendments nevertheless included a
list of categories of individuals who are excluded from title 5 protection, even
though they may otherwise fall within the broad definition of “employee” set
forth in section 7511(a)(1). Lal, 821 F.3d at 1379. Those exclusions include
political appointees and confidential or policy-making positions, as well as seven
additional categories listed at 5 U.S.C. § 7511(b)(1)-(10).
¶10 The plain language of the appellant’s SF-50 remarks section only speaks in
terms of appointment authority and does not discuss any other possible agency
action. IAF, Tab 9 at 13. Further, the applicable statute fails to reference an
“appointment” and discusses only the “salaries and expenses” of those
representatives provided for in section 287. 22 U.S.C. § 287e. Thus, because
neither the SF-50 remarks section, nor 22 U.S.C. § 287e, include an explicit
reference to the agency’s ability to take an adverse action against the appellant,
6
the Board must determine if the Due Process Amendments extend appeal rights to
employees appointed under section 287e. Lal, 821 F.3d at 1378.
¶11 In Lal, our reviewing court addressed the question of whether, in light of
the Due Process Amendments, the appointing authority of 42 U.S.C. § 209(f)
excluded the appellant in that case from chapter 75 protections. 821 F.3d at 1380.
That statute states “[i]n accordance with regulations, special consultants may be
employed to assist and advise in the operations of the [agency]. Such consultants
may be appointed without regard to the civil-service laws.” 42 U.S.C. § 209(f).
After discussing the CSRA and the Due Process Amendments in detail, the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) found that, “absent a
specific exclusion of appeal rights or exemption from section 7511’s definition of
employee, a statute exempting an appointment from the civil-service laws cannot
escape the broad reach of [the] Due Process Amendments and therefore does not
strip the Board of jurisdiction to hear an appeal from an adverse action.”
821 F.3d at 1380. The court explained that, “[t]o the extent the OPM’s
implementing regulation at 5 C.F.R. § 752.401(d)(12) calls for a result contrary to
the plain meaning of 5 U.S.C. § 7511 and 42 U.S.C. § 209(f), ‘it has no force or
effect in this case.’” Lal, 821 F.3d at 1381 (quoting King v. Briggs, 83 F.3d
1384, 1388 (Fed. Cir. 1996)).
¶12 Like 42 U.S.C. § 209(f), 22 U.S.C. § 287e contains no language exempting
appointees from section 7511’s definition of “employee.” 22 U.S.C. § 287e.
Thus, we must look to whether chapter 75 appeal rights were specifically
excluded. Lal, 821 F.3d at 1380-81. The statutory language only makes a general
reference to “civil-service laws,” but it goes on to explicitly exclude “chapter 51
and subchapter III of chapter 53 of Title 5.” 22 U.S.C. § 287e. There is no
reference in the statute that explicitly excludes the appellant from the protections
of chapter 75 appeal rights. Id. As our reviewing court noted, “Congress knows
how to exempt a civil service position from the protections found in chapters 75
and 77 of title 5 if it so desires.” Briggs, 83 F.3d at 1388. Because Congress
7
could have excluded appointees from the protections of chapter 75 in enacting
22 U.S.C. § 287e, as it explicitly chose to do with chapter 51 and subchapter III
of chapter 53, we find that 22 U.S.C. § 287e does not preclude the appellant from
exercising her appeal rights pursuant to chapter 75. See Briggs, 83 F.3d at 1388
(finding that an appointment under 29 U.S.C. § 783(a)(1) made “without regard to
the provisions of Title 5 governing appointments in the competitive service, or
the provisions . . . of such title relating to classification and General Schedule pay
rates” did not exempt the appointee from the broad reach of 5 U.S.C.
§ 7511(a)(1)(C) in light of the Due Process Amendments). Further, to the extent
5 C.F.R. § 752.401(d)(12) calls for a result contrary to the plain meaning of
5 U.S.C. § 7511 and 22 U.S.C. § 287e, “‘it has no force or effect in this case.’”
Lal, 821 F.3d at 1381 (quoting Briggs, 83 F.3d at 1388).
¶13 Despite what appears to be a contradictory ruling from the D.C. Circuit, see
Suzal, 32 F.3d at 578-59, it is well settled that decisions of other circuit courts are
persuasive, but not controlling authority, and that decisions of the Federal Circuit
constitute precedent binding on the Board, Fairall v. Veterans Administration,
33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we are
bound by the Federal Circuit’s ruling in Lal and find that 22 U.S.C. § 287e does
not foreclose Board jurisdiction over the appellant’s adverse action appeal.
8
ORDER
¶14 Accordingly, we REVERSE the initial decision and REMAND this appeal
to the New York Field Office for adjudication on the merits consistent with this
Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.