Supreme Court Denies Certiorari On MSPB Jurisdiction Case

Two United States Postal Service employees challenged MSPB dismissals, for lack of jurisdiction, of their removal appeals. The MSPB found that the employees did not have appeal rights because they did not meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)(ii), which requires one year of current continuous service. The United States Court of Appeals affirmed the MSPB’s dismissals. On April 1, 2019, the United States Supreme Court denied the petition for writ of certiorari appealing the appeals court decision, thereby affirming and making final the dismissal of the employees’ MSPB removal appeals.

At the Federal Circuit, one employee argued that he was an “employee” with appeal rights under Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363 (1984). The employee argued that he qualified as an “employee” under a “continuing employment contract” theory due to the aggregation of his temporary appointments. The Board requested a remand from the appeals court so that it could determine whether Roden, a case that was thirty-four years old, was still good law. The Board’s request was granted, and on remand, while the Board had a quorum, the Board found that regulations promulgated by the Office of Personnel Management (“OPM”) since Roden had superseded the case law, and that OPM had purposely abrogated the “continuing employment contract theory” when it promulgated 5 C.F.R. § 752.402. The Board dismissed the case, and the employee appealed again to the Federal Circuit.

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