News from the Federal Circuit: On May 11, 2016, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Lal v. Merit Systems Protection Board, No. 2015-3140, holding that a category of employees at the Department of Health and Human Services (HHS) had the right to appeal adverse actions to the Merit Systems Protection Board (MSPB).
Under a statute dating back to the 1940s, HHS was allowed to appoint excepted service “special consultants” under 42 U.S.C. § 209(f); these consultants “may be appointed without regard to the civil-service laws.” This special statute long predated the present framework for civil service appeal rights to the present MSPB, a framework implemented by the Civil Service Reform Act of 1978, and more specifically predated the 1990 amendments which extended MSPB appeal rights to excepted service employees.
Historically, these special consultants had been generally understood to not have MSPB appeal rights for adverse actions, even though they were excepted service employees. The Federal Circuit in Lal found otherwise. The Federal Circuit based its holding on close analysis of the text of 42 U.S.C. § 209(f), noting that when Congress intends to exclude employees from MSPB appeal rights, it does so explicitly by referencing adverse action appeal rights. Here, 42 U.S.C. § 209(f) only referenced “appointment”, which the court found to only exclude from Title 5 rules the appointment itself; all other personnel actions–including adverse actions–remain under Title 5, with potential MSPB appeal rights.