Petition for review of the Merit Systems Protection Board in case no. DC3443070780-M-1.
The opinion of the court was delivered by: Bryson, Circuit Judge.
Before BRYSON, DYK, and MOORE, Circuit Judges.
Rickey D. Carrow petitions for review of a decision of the Merit Systems Protection Board, on remand from this court, dismissing his appeal for lack of jurisdiction. We affirm.
The facts of this case are set out in our opinion on Mr. Carrow's previous appeal to this court. Carrow v. Merit Sys. Prot. Bd., 564 F.3d 1359 (Fed. Cir. 2009). In brief summary, Mr. Carrow served for five years as an orthotist for the Department of the Army. In 2006, he applied for an orthotist-prosthetist position with the Department of Veterans Affairs ("DVA"). During Mr. Carrow's interviews for the job, the DVA informed him that the position was in the excepted service and was subject to a probationary period. The probationary period would end when Mr. Carrow completed the so-called "boarding" process, i.e., when he was certified by the Orthotist-Prosthetist
Professional Standards Board. Mr. Carrow was selected for the DVA position, and he began work under his new appointment in February 2007, without a break in service from his prior position with the Army. Four months later, however, the DVA terminated Mr. Carrow for "unacceptable performance issues." See id. at 1361.
When Mr. Carrow sought to challenge his removal before the Merit Systems Protection Board, the administrative judge who was assigned to his case ruled that because Mr. Carrow was serving a probationary period in his position with the DVA, the Board lacked jurisdiction over his appeal. The administrative judge ruled that Mr. Carrow had voluntarily accepted a temporary appointment under 38 U.S.C. § 7405(a)(1) and thus had forfeited the Board appeal rights he had enjoyed in his previous position with the Department of the Army. In the alternative, the administrative judge ruled that Mr. Carrow was ineligible for appellate rights under 5 U.S.C. § 7511. In that regard, the administrative judge ruled that because Mr. Carrow was a temporary, probationary, and nonpreference eligible employee in the excepted service, he was entitled to appeal to the Board only if he qualified as an "employee" by satisfying the requirements of 5 U.S.C. § 7511(a)(1)(C)(ii). That provision defines a non-preference eligible individual in the excepted service as an "employee" if the individual "has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less." The administrative judge ruled that Mr. Carrow could not satisfy the requirement that he have completed two years of current, continuous service in an executive branch agency because he had not completed two years of service within the DVA at the time of his removal. In the administrative judge's view, the statute did not permit Mr. Carrow to aggregate his service in the Department of the Army with his service in the DVA because the statutory two years of service were required to be performed in the same executive branch agency.
Mr. Carrow petitioned this court for review of the Board's decision. Although we upheld several of the Board's rulings, we concluded that the Board's decision was erroneous in certain respects. We therefore vacated the Board's dismissal order and remanded the case to the Board for further proceedings.
At the outset, we upheld the administrative judge's findings that Mr. Carrow's position in the DVA was a temporary position pending board certification and that he was a probationary employee at the time of his removal. See Carrow, 564 F.3d at 1363-64. In light of the administrative judge's findings, we also rejected Mr. Carrow's argument that he was not adequately apprised of the relevant terms and conditions of his appointment within the DVA. Id. at 1364. Based on the administrative judge's findings and the administrative record, we upheld the administrative judge's conclusion that Mr. Carrow knowingly accepted a temporary appointment in the DVA under 38 U.S.C. § 7405(a)(1).
We disagreed with the Board's analysis in two respects, however. First, contrary to the ruling of the administrative judge, we held that under 38 U.S.C. § 7403(f)(3) Mr. Carrow was entitled to the protections of Chapter 75 of Title 5. Those protections include the right to appeal to the Merit Systems Protection Board with respect to "all matters relating to adverse actions." We therefore held that the administrative judge could not dismiss Mr. Carrow's appeal solely because he was appointed under 38 U.S.C. § 7405(a)(1). See Carrow, 564 F.3d at 1364-65. Second, we disagreed with the administrative judge's conclusion that, even under Title 5, Mr. Carrow would not qualify as an "employee" because he had not completed at least two years of "current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less." 5 U.S.C. § 7511(a)(1)(C)(ii). The administrative judge interpreted the term "an Executive agency" to require that the two years of continuous service be within the same agency. However, we held that under governing regulations issued by the Office of Personnel Management, Mr. Carrow was entitled to aggregate service credit in more than one agency as long as his service with the two agencies was in "the same or similar positions." Carrow, 564 F.3d at 1365-66.
The remaining question before this court in the prior appeal was whether Mr. Carrow had been employed for two years "under other than a temporary appointment limited to 2 years or less," as required by 5 U.S.C. § 7511(a)(1)(C)(ii). We held that if he did not satisfy that provision, he would not qualify as an "employee" entitled to the civil service rights set forth in Title 5. Because the administrative judge had not addressed that issue, we remanded the case to the Board for further development of that jurisdictional question.
Following the remand from this court, the full Board in turn remanded the case to the administrative judge for further adjudication. After making additional findings, the administrative judge dismissed the appeal for want of jurisdiction. The administrative judge first found that at the time Mr. Carrow left his position with the Army and entered into service with the DVA, he was informed that his new position was a temporary position in the excepted service, not in the competitive service, and that his appointment would be temporary pending the completion of the boarding process. The administrative judge further found, however, that Mr. Carrow was not specifically advised that his temporary appointment was limited to 13 months, i.e., that it was less than two years in length, which is the statutory trigger for Mr. Carrow to qualify as an "employee" under 5 U.S.C. § 7511(a)(1)(C)(ii). Nonetheless, the administrative judge ruled that the DVA's failure to advise Mr. Carrow that his temporary appointment was for less than two years did not render his decision to leave his position with the Army involuntary and did not give the Board jurisdiction over his appeal.
In analyzing Mr. Carrow's claim, the administrative judge noted that the Board has held that when accepting an appointment in a different agency, the employee is responsible for determining the consequences of the change of positions and it is "not incumbent on the new employing agency to inform an employee of the consequences of the change." In that regard, the administrative judge quoted the Board's decision in Park v. Department of Heath & Human Services, 78 M.S.P.R. 527, 535 (1998), which noted that a "new employing agency may not possess and cannot be expected to have specific knowledge of the terms of the potential employee's previous employment," and thus "[i]t should not have the same obligation to advise the employee of all possible consequences of changing ...