Federal Legal Corner: Creditable Time for MSPB Appeal Rights

On January 15, 2014, a panel of the U.S. Court of Appeals for the Federal Circuit issued its decision in Mitchell v. Merit Systems Protection Board, No. 2013-3056. In a split decision, the Federal Circuit took an expansive view of what constituted creditable time for an excepted service employee to accrue Merit Systems Protection Board appeal rights.

Mitchell originally entered federal service in 1998, working at the Social Security Administration. From 2006-2008, Mitchell was appointed as a Special Assistant U.S. Attorney (SAUSA) on a one-year appointment (later extended) under which Social Security continued to pay her salary. In December 2008, the Department of Justice (DoJ) appointed Mitchell to an Assistant U.S. Attorney (AUSA) position in the same office. Mitchell’s AUSA appointment was originally listed as temporary and not to exceed 18 months, pending completion of a background investigation. The background investigation was completed in August 2009, at which time DoJ issued new personnel paperwork claiming that Mitchell’s position was subject to a new two-year trial period before she gained MSPB appeal rights. DoJ removed Mitchell effective July 2011 without notice or an opportunity to respond. Mitchell appealed to the MSPB, which dismissed for lack of jurisdiction, on the grounds that the time spent for the background investigation was a separate temporary appointment. Mitchell then appealed to the Federal Circuit.

Under statute, a non-preference eligible excepted service employee (such as Mitchell) must complete two years of current continuous service in a non-temporary appointment in order to qualify for MSPB appeal rights. Mitchell’s case turned on the issue of whether Mitchell’s time spent awaiting the completion of the background investigation was a temporary appointment for a period of one year or less. Writing for the majority, Judge Taranto held that this time was not a temporary appointment, noting that regulations limit temporary appointments to one year and the fact that neither Mitchell nor DoJ contemplated that her AUSA appointment would be of short duration (as opposed to her time spent as a SAUSA). In dissent, Judge Prost asserted that DoJ’s choice to appoint Mitchell to an 18-month temporary appointment rather than a 12-month temporary appointment should be excused under the “harmless error” doctrine.

The Federal Circuit therefore reversed the MSPB’s decision and remanded for the MSPB further proceedings. On remand, the possibility exists of Mitchell receiving reinstatement, especially given that she was not provided notice and a chance to respond to the proposal to remove her, potentially leaving the removal defective for lack of due process.

* 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.

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