Only those who meet the definition of an “employee” set forth at 5 USC section 7511(a) have a Merit Systems Protection Board appeal right if an adverse action (removal, demotion, suspension of 15 days or more) is taken against you. Many federal positions do not meet this definition, and thus those who occupy those positions do not have an appeal right to the MSPB.
So what if you are in a job that is covered by this statutory definition, and then change jobs into a position that is not covered by the definition? Do you lose your appeal rights? A recent decision from the U.S. Court of Appeals for the Federal Circuit provides a clear and final answer: Yes, you lose your appeal rights.
The court of appeals decision is Williams v. MSPB. In reaching this conclusion, the court overruled MSPB precedent from 1991.
The MPSB case, Exum v. Department of Veterans Affairs, 62 M.S.P.R. 344 (1991), held that an “employee” who had statutory appeal rights from being in a prior position retained his appeal rights when transferring or being reassigned to another position if, when the employee accepted a new position, the agency failed to inform the employee that the change of position could result in the loss of MSPB appeal rights.
Thus, under Exum, the onus was on the agency to promptly and correctly notify an employee when a change of position would remove that person from the definition of an “employee” under 5 USC section 7511(a) and the loss of an appeal right. If an employee could prove the agency failed to provide such notification, then per Exum, the Board imputed an appeal right to the transferred employee.
Not surprisingly, when the Federal Circuit considered the Exum rule, it rejected the Board’s analysis. Per the court of appeals, “an agency’s failure to inform an employee of the consequences of a voluntary transfer cannot confer appeal rights to an employee in a position which has no appeal right by statute.”
The court of appeals, as predicted, used a strict statutory construction approach: If Congress did not grant an appeal right by law, then no appeal right can be imputed because of an error or omission by the agency in informing an employee of their legal status.
What’s the practical implication of Williams v. MSPB? The onus is now on you, the employee, to determine your legal status when changing position. Specifically, will this change of position keep you in or take you out of the legal definition of an “employee" at 5 USC section 7511(a).
Debra Roth is a partner at Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. Email your legal questions to firstname.lastname@example.org.