MSPB Jurisdiction Over Newer FAA Employees

On March 4, 2010, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Roche v. Merit Systems Protection Board (No. 2009-3111). Affirming the Merit Systems Protection Board (MSPB) decision below, the Federal Circuit found no MSPB jurisdiction over Roche's removal by the Federal Aviation Administration (FAA).

Roche was hired by the FAA as an air traffic controller specialist in February 2006 on an excepted service appointment and was removed in September 2007. In its removal notice, FAA noted three appellate avenues: a union grievance, an administrative appeal with FAA or appeal to the MSPB. Roche chose to appeal to the MSPB.

After a hearing, but before issuing a final decision, the MSPB administrative judge issued an order to show cause why Roche's appeal should not be dismissed for lack of MSPB jurisdiction. After briefing, the administrative judge dismissed Roche's case in May 2008. The administrative judge found that Roche was a non-preference eligible employee in an excepted service position, and as such fell outside of the definition of an "employee" with MSPB appeal rights under 5 U.S.C. § 7511.

Roche petitioned the MSPB for review. On December 8, 2008, the MSPB modified the administrative judge's decision but affirmed its result. Roche v. Department of Transportation, 110 M.S.P.R. 286. Roche argued in his petition for review that the 5 U.S.C. § 7511 definition of "employee" did not apply to FAA employees like him under the special jurisdictional rules which only apply to FAA and TSA. Specifically, under 1996 legislation, the FAA (and TSA, then a part of FAA) were exempted from most parts of Title 5 of the U.S. Code—including the provisions governing MSPB appeals. Congress restored preexisting MSPB appeal rights in 2000 under the Ford Act (P.L. 106-181, codified as amendments to 49 U.S.C. §§40122(g)(2)(H), 40122(g)(3))—but did not expressly reinstate the 5 U.S.C. § 7511 definitions section. Both Roche and the FAA therefore argued that the definitions in the FAA's internal personnel management system—which would have granted MSPB appeal rights to Roche after one year of service—applied to Roche's case. The MSPB, however, interpreted the text of the Ford Act as implicitly reapplying the 5 U.S.C. § 7511 definitions to FAA and TSA employees. Roche then appealed to the Federal Circuit.

In its decision, the Federal Circuit affirmed the MSPB's statutory construction analysis. The Federal Circuit also concurred with the MSPB that the broader FAA definition of "employee" would be inconsistent with the Ford Act's intent to reinstate preexisting appeal rights, as the FAA's definition would have extended appeal rights to previously uncovered FAA employees such as political appointees. Accordingly, the Federal Circuit found Roche's case outside of the MSPB's limited jurisdiction since Roche was non-preference eligible and lacked two years of tenure with the FAA. Thus it affirmed the dismissal by the MSPB. The Federal Circuit noted that, with all other appellate options now time-barred, Roche had no further appeal rights.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com