                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                          2017 MSPB 1

                              Docket No. SF-0752-15-0165-M-1

                                        Harris L. Winns,
                                           Appellant,
                                               v.
                               United States Postal Service,
                                            Agency.
                                         January 4, 2017

           Harris L. Winns, San Jose, California, pro se.

           Nina Paul, Esquire, San Francisco, California, for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         This appeal is before the Board after the U.S. Court of Appeals f or the
     Federal Circuit granted the Board’s request to remand the case to the Board for
     further consideration. Except as expressly MODIFIED by this Opinion and Order
     to supplement the administrative judge’s jurisdictional analysis, we AFFIRM the
     initial decision, issued in MSPB Docket No. SF-0752-15-0165-I-1, dismissing the
     appeal for lack of jurisdiction.

                                        BACKGROUND
¶2         The agency employed the preference‑eligible appellant in a series of four
     temporary, time-limited appointments, beginning on December 3, 2011. Winns v.
                                                                                             2

     U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Initial Appeal File
     (IAF), Tab 8 at 5, Tab 10 at 1, Tab 14 at 22-28. Each appointment was for less
     than a year, and they were separated by a break in service of at least several days.
     IAF, Tab 14 at 22-28.      Most recently, on February 6, 2014, following a 5-day
     break in service, the agency appointed the appellant to a temporary Postal
     Support Employee position. Id. at 22-23. Approximately 9 months later, before
     that appointment expired, the agency terminated the appellant’s employment for
     alleged misconduct. 1 Id. at 40, 51.
¶3          The appellant filed a Board appeal challenging his termination, and
     alleged, among other things, that he was terminated in retaliation for
     whistleblowing.     IAF, Tab 1, Tab 12 at 24-26.        He did not request a hearing.
     IAF, Tab 1 at 2. Based on the written record, the administrative judge dismissed
     the appeal for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID). He found
     that the Board lacks jurisdiction over the appeal because the appellant failed to
     raise a nonfrivolous allegation that he had completed 1 year of current continuous
     service at the time that he was terminated. ID at 3-4. He further found that the
     Board lacks jurisdiction over the appellant’s claims of whistleblower retaliation
     because U.S. Postal Service employees are not entitled to seek corrective action
     under 5 U.S.C. § 1221. 2 ID at 4.




     1
       The agency issued the appellant two separate termination notices based on different
     alleged misconduct. IAF, Tab 14 at 40-43, 51-54. In the first notice, the agency stated
     that the appellant would be separated effective November 7, 2014. Id. at 51. In the
     second notice, the agency stated that he would be separated effective November 30,
     2014. Id. at 40. It is not clear precisely when the appellant was separated from the
     agency, but there is no suggestion that it was not in or around November 2014.
     2
       The administrative judge also found that, absent an otherwise appealable action, the
     Board lacks jurisdiction over the appellant’s claims of discrimination and retaliation for
     prior equal employment opportunity and union activities. ID at 4-5; see IAF, Tab 1
     at 4-9, Tab 5 at 7-8, 14-20.
                                                                                     3

¶4         The appellant filed a petition for review of the initial decision . Winns v.
     U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Petition for Review
     (PFR) File, Tab 1. In pertinent part, for the first time on review, the appellant
     argued that, although he held the appointment from which he was terminated for
     less than a year, and had been appointed to the position following a break in
     service, he nevertheless had Board appeal rights under the “continuing
     employment contract” theory set forth in Roden v. Tennessee Valley Authority,
     25 M.S.P.R. 363, 367-68 (1984). PFR File, Tab 1 at 13-14. In a May 7, 2015
     Final Order, the Board denied the appellant’s petition for review, without
     addressing his arguments regarding Roden. Winns v. U.S. Postal Service, MSPB
     Docket No. SF-0752-15-0165-I-1, Final Order (May 7, 2015) (Final Order); PFR
     File, Tab 8.
¶5         The appellant appealed the Board’s decision to the Federal Circuit.
     Winns v. Merit Systems Protection Board, MSPB Docket No. SF-0752-15-0165-
     L-2, Litigation File (LF), Tab 3. The Federal Circuit granted the Board’s request
     to remand the appeal to the Board to consider whether Roden was still good law,
     and if so, whether it would alter the Board’s determination that it lacks
     jurisdiction over this appeal.     Winns v. Merit Systems Protection Board,
     No. 2016-1206, slip op. (Fed. Cir. Apr. 25, 2016); LF, Tab 8 at 1-5, Tab 11.
¶6         On remand, the Board issued an order directing the parties to address
     whether Roden should be overruled in light of 5 C.F.R. § 752.402, a regulation
     promulgated by the Office of Personnel Management (OPM) after Roden was
     issued, which defines the term “current continuous employment.” Winns v. U.S.
     Postal Service, MSPB Docket No. SF-0752-15-0165-M-1, Remand File (RF),
     Tab 2. Both parties responded to the show cause order. RF File, Tabs 5-6.

                                        ANALYSIS
¶7         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.       Maddox v. Merit Systems
                                                                                          4

     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
     of proving by preponderant evidence that his appeal is within the Board’s
     jurisdiction. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶8         Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
     adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Mathis v. U.S.
     Postal Service, 865 F.2d 232 (Fed. Cir. 1988).                Pursuant to 5 U.S.C.
     § 7511(a)(1)(B), which concerns preference-eligible employees in the excepted
     service, an employee with the right to appeal to the Board includes a
     preference-eligible U.S. Postal Service employee who has completed “1 year of
     current, continuous service” in the same or similar positions. 4              5 U.S.C.
     § 7511(a)(1)(B)(ii); see 5 U.S.C. §§ 7511(b)(8); Mathis, 865 F.2d at 232-33. We
     agree with the administrative judge that the dispositive issue in the instant appeal
     is whether the appellant completed 1 year of “current continuous service” at the
     time of his termination. 5 ID at 3-4.
¶9         Title 5 does not define “current continuous service.” In Roden, the Board
     found that a preference-eligible employee who held a series of five temporary
     appointments to the same position, separated by short breaks in service,

     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     4
        Employees of the U.S. Postal Service also may appeal adverse actions to the Board
     under 5 U.S.C. chapter 75 if they are management or supervisory employees, or
     employees engaged in personnel work in other than a purely nonconfidential clerical
     capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Toomey v. U.S.
     Postal Service, 71 M.S.P.R. 10, 12 (1996). The appellant has not alleged, and the
     record does not reflect, that he was employed in any of these capacities. IAF, Tab 14
     at 22-28.
     5
       The administrative judge did not make findings regarding whether the appellant’s
     positions with the agency were the same or similar, and we find it unnecessary to do so
     here, having found that the Board lacks jurisdiction over the appeal on the ground that
     the appellant did not have 1 year of current continuous service at the time of
     his termination.
                                                                                             5

      established jurisdiction over his termination appeal, even though he held the
      appointment from which he was terminated for less than a year.                   Roden,
      25 M.S.P.R. at 364, 367-68.         The Board found that, even assuming that
      section 7511(a)(1)(B) generally excluded service that was interrupted by a break
      in service of 2 workdays, it was obligated to look beyond the form of statutory
      and other provisions, and to determine the purpose which these provisions were
      intended to serve. Roden, 25 M.S.P.R. at 367. The Board found that, under the
      circumstances at issue, the agency had effectively entered into a continuing
      employment contract with the employee, and therefore, despite several breaks, his
      service was “continuous” within the meaning of section 7511(a)(1)(B). Roden,
      25 M.S.P.R. at 368.     Having resolved the appeal on other grounds, the Board
      declined to address whether guidance in versions of OPM’s Federal Personnel
      Manual (FPM) in effect at the time interpreted the “current continuous service”
      requirement in section 7511(a)(1)(B) as precluding breaks in service of a
      workday. 6 Roden, 25 M.S.P.R. at 365 n.3, 367.
¶10         Approximately 3 and a half years after the Board issued Roden, OPM
      promulgated 5 C.F.R. § 752.402, a regulation that defines “current continuous
      employment.”     See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,620 (June 9,
      1988); see also Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322
      (Fed. Cir. 2012).     Although 5 C.F.R. § 752.402 refers to “current continuous
      employment,” rather than “current continuous service,” the appellant does not

      6
        The relevant versions of the FPM contained seemingly conflicting guidance regarding
      this issue. In pertinent part, the 1980 version of the FPM stated, “[c] urrent continuous
      employment in a position outside the competitive service may be either employment in
      one position without a break of a workday or employment in more than one position in
      the same line of work without a break of a workday. ” Roden, 25 M.S.P.R. at 365 n.3.
      However, the same section also stated that “employment is credited for this purpose in
      the same manner that it is credited toward completion of a probationary period,” which
      would permit a break in service of up to 30 days. Id. at 365 & n.3. In 1984, the FPM
      was revised to clarify that the 30-day criterion applied to the excepted service, as well
      as the competitive service. Id. at 365.
                                                                                           6

      dispute that the regulation was enacted to implement 5 U.S.C. chapter 75, and
      applies to 5 U.S.C. § 7511(a)(1)(B). 7      RF, Tab 6; see also Wilder, 675 F.3d
      at 1322 n.1; Other Than Full-Time Career Employment and Adverse Actions,
      52 Fed. Reg. 9,867-01, 9,867-68 (Mar. 27, 1987).
¶11         In its current iteration, 5 C.F.R. § 752.402 provides that “[c]urrent
      continuous employment means a period of employment or service immediately
      preceding an adverse action without a break in Federal civilian employment of a
      workday.” 8 The regulation does not provide for an exception to the requirement
      that the service be without a break of a workday in the cases of a “continuing
      employment contract,” or any other circumstances. See 5 C.F.R. § 752.402.
¶12         In OPM’s published response to comments regarding 5 C.F.R. § 432.103, a
      proposed regulation pertaining to performance-based actions under 5 U.S.C.
      chapter 43, OPM made clear that 5 C.F.R. § 752.402 precludes the “continuing
      employment contract” theory set forth in Roden. See Reduction in Grade and
      Removal Based on Unacceptable Performance, 54 Fed. Reg. 26,172-01, 26,174
      (June 21, 1989). A union recommended that OPM revise the proposed definition
      of “current continuous employment” in 5 C.F.R. § 432.103, which was
      substantially similar to the definition in 5 C.F.R. § 752.402, to provide for a
      continuing employment contract theory, consistent with Roden. See Reduction in


      7
        Prior to the enactment of the 1990 Civil Service Due Process Amendments, Pub. L.
      No. 101-376, 104 Stat. 461, 5 U.S.C. § 7511(a)(1)(A), a provision of section 7511(a)(1)
      not at issue in the instant appeal referred to “current continuous employment,” rather
      than “current continuous service.” See Civil Service Reform Act of 1978, Pub. L.
      No. 95-454, 92 Stat. 1111; Wilder, 675 F.3d at 1322 n.1.
      8
        At the time that 5 C.F.R. § 752.402 was promulgated, the regulation defined “current
      continuous employment” as “a period of employment or service immediately preceding
      an adverse action in the same or similar positions without a break in Federal civilian
      employment of a workday.” See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,623
      (June 9, 1988). In a 2008 amendment to 5 C.F.R. § 752.402, OPM deleted the reference
      to “the same or similar positions.” See Career and Career-Conditional Employment and
      Adverse Actions, 73 Fed. Reg. 7,187-01, 7,188 (Feb. 7, 2008).
                                                                                             7

      Grade and Removal Based on Unacceptable Performance, 54 Fed. Reg.
      26,172-01, 26,174 (June 21, 1989). OPM declined to do so, explaining that its
      FPM guidance in effect at the time that Roden was issued:
               was superseded by [5 C.F.R. § 752.402[] which became effective on
               July 11, 1988. The regulation makes clear that OPM’s policy
               governing the computation of current continuous employment allows
               for no break in Federal civilian employment. Since the definition
               suggested by the union for Part 432 is not consistent with established
               policy, OPM has not adopted the suggestion. 9
      Id. Thus, under 5 C.F.R. § 752.402, neither the employee’s service in Roden, nor
      the appellant’s service at issue in the instant appeal, qualify as “current
      continuous service.”
¶13            Congress   has   expressly   authorized     OPM    to   prescribe   regulations
      implementing 5 U.S.C. chapter 75. 5 U.S.C. § 7514; Wilder, 675 F.3d at 1322.
      For this reason, and because OPM promulgated 5 C.F.R § 752.402 following
      notice     and   comment    procedures,    we      review   OPM’s    interpretation   of
      section 7511(a)(1)(B) under the 2‑step analytical framework articulated in
      Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837,
      842-43 (1984).        See Wilder, 675 F.3d at 1322; Jonson v. Federal Deposit
      Insurance Corporation, 122 M.S.P.R. 454, ¶ 15 (2015); Preyor v. U.S. Postal
      Service, 83 M.S.P.R. 571, ¶ 11 (1999).          First, we must determine “whether
      Congress has directly spoken to the precise question at issue ”; if so, we “must
      give effect to the unambiguously expressed intent of Congress.”                Chevron,
      467 U.S. at 842-43. If the statute is silent or ambiguous concerning the question
      at issue, the inquiry proceeds to an analysis of whether the agency’s

      9
        OPM also erroneously stated that the Board decision in Roden “was based, in large
      part” on the guidance in the FPM. Id. In fact, as discussed previously, in Roden, the
      Board declined to address whether to afford deference to the FPM guidance.
      25 M.S.P.R. at 365 & n.3, 367. However, this error is of no consequence because the
      pertinent inquiry is OPM’s interpretation of section 7511(a)(1)(B), the relevant statute,
      not OPM’s interpretation of the Board’s rationale for its decision in Roden.
                                                                                        8

      interpretation is based on a permissible construction of the statute. Id. at 843. If
      so, the Board must defer to the agency’s interpretation. Id.; Day v. Department of
      Homeland Security, 119 M.S.P.R. 589, ¶ 26 (2013).
¶14         The fact that title 5 does not define “current continuous service,” standing
      alone, does not necessarily render the statute silent or ambiguous. See Gardner v.
      Brown, 5 F.3d 1456, 1459 (Fed. Cir. 1993) (finding that “Congress is not required
      to define each and every word in a piece of legislation in order to express clearly
      its will”), aff’d, 513 U.S. 115 (1994).      The Board may refer to dictionary
      definitions to determine the ordinary meaning of an undefined statutory term.
      See Information Technology & Applications Corporation v. United States,
      316 F.3d 1312, 1320 (Fed. Cir. 2003).           The Merriam Webster Collegiate
      Dictionary defines “continuous” as “marked by uninterrupted extension in space,
      time, or sequence.” Merriam Webster Collegiate Dictionary 250 (10th ed. 2002).
      Similarly,   Webster’s II   New     Riverside    University   Dictionary    defines
      “continuous” as “uninterrupted” or “unbroken.”        Webster’s II New Riverside
      University Dictionary 305 (1984).       Thus, the ordinary meaning of “current
      continuous service” appears to preclude breaks in service.
¶15         Moreover, the legislative history of the Civil Service Reform Act of 1978
      (CSRA), which enacted 5 U.S.C. chapter 75, does not preclude the Board from
      interpreting the phrase “current continuous service” in section 7511(a)(1)(B)
      according to its plain meaning. See S. Rep. No. 95-969 (1978), reprinted in 1978
      U.S.C.C.A.N. 2723; H.R. Conf. Rep. 95-1717 (1978), reprinted in 1978
      U.S.C.C.A.N. 2860; see also Pirkkala v. Department of Justice, 123 M.S.P.R.
      288, ¶ 7 (2016) (finding that, when statutory language is clear, it must control
      absent clearly expressed legislative intent to the contrary). Instead, the Senate
      Committee Report states that “[t]he phrase ‘one year of current continuous
      service . . . ,’ which defines the extent of coverage of employees in the excepted
      service, is intended to be the same as that currently used in civil service
      regulations.” S. Rep. No. 95-969, reprinted in 1978 U.S.C.C.A.N. 2723, 2770.
                                                                                           9

      At the time that the CSRA was enacted, although the civil service regulations
      themselves did not define “current continuous service,” the meaning of that
      phrase, as used in those regulations, was set forth in the 1978 version of the FPM,
      which provided:
            Current continuous employment in a position outside the compet itive
            service may be either (i) employment in one position without a break
            of a workday or (ii) employment in more than one position in the
            same line of work without a break of a workday.
      Mathis, 865 F.2d at 234; Weinberger v. U.S. Postal Service, 4 M.S.P.R. 330, 332
      (1980).    Thus, interpreting the “current continuous service” requirement in
      section 7511(a)(1)(B) in accordance with the plain meaning of the term
      “continuous” appears consistent with the intent of Congress.
¶16         Even if we were to find that Congress had not expressed its intent on this
      matter, however, or that its purpose and intent is unclear, we would find that
      OPM’s interpretation in 5 C.F.R. § 752.402 is based on a permissible
      construction of the statute and afford Chevron deference to it. 10 As the agency
      charged with promulgating regulations to implement 5 U.S.C. chapter 75, OPM’s
      interpretation of a statutory term governs if it is a reasonable interpretation of the
      statute—not    necessarily   the   only   possible   interpretation,   nor   even   the
      interpretation deemed most reasonable by the Board. See Entergy Corporation v.
      Riverkeeper, Inc., 556 U.S. 208, 218 (2009); Day, 119 M.S.P.R. 589, ¶ 26. Here,
      because OPM’s definition of “current continuous service” is in accordance with
      the plain meaning of “continuous” and the legislative history of the CSRA, we
      find that it is both reasonable and consistent with the statute. 11


      10
        In contrast, OPM’s FPM guidance in effect during the time period at issue in Roden
      was not subject to notice and comment rulemaking, and would not be afforded Chevron
      deference. See Knapp v. Department of Commerce, 24 M.S.P.R. 605, 609 n.2 (1984).
      11
        We have considered the appellant’s argument that the definition of current continuous
      employment in 5 C.F.R. § 752.402 is unreasonable because it differs from the 30-day
      break in service permitted for purposes of tacking on prior service to complete a
                                                                                          10

¶17         In addition, Roden was incorrectly decided to the extent that it found that
      an appellant can establish Board jurisdiction based on a “continuing employment
      contract” theory, regardless of whether he falls within the definition of an
      employee with Board appeal rights under the applicable statute.           See Roden,
      25 M.S.P.R. at 367-68.     “The Board’s jurisdiction is strictly limited to that
      provided by statute, rule, or regulation,” and with respect to adverse action
      appeals under 5 U.S.C. chapter 75, “that jurisdiction only encompasses appeals
      by ‘employees’ as defined in section 7511(a)(1).”        Hartman v. Merit Systems
      Protection Board, 77 F.3d 1378, 1380 (Fed. Cir. 1996).            The parties cannot
      confer jurisdiction by a contract or agreement where none otherwise exists. See
      Metzenbaum v. General Services Administration, 96 M.S.P.R. 104, ¶ 9 (2004).
¶18         For the reasons set forth above, we overrule the Board’s decision in Roden.
      Further, we overrule subsequent decisions relying on Roden to find that an
      appellant   may   establish   “current   continuous    service”    for   purposes   of
      section 7511(a)(1)(B) under a “continuing employment contract” theory, despite a
      break in service of a workday, including:          Melvin v. U.S. Postal Service,
      79 M.S.P.R. 372, ¶¶ 5-6 (1998); Bradley v. U.S. Postal Service, 69 M.S.P.R. 595,
      597-99 (1996); and Hayes v. U.S. Postal Service, 36 M.S.P.R. 622, 625 (1988). 12
¶19         Finally, we discern no basis to disturb our findings in the prior final order
      that: (1) the Board otherwise lacks jurisdiction over the appeal under 5 U.S.C.
      chapter 75; (2) the Board lacks jurisdiction over the appellant’s whistleblower


      probationary or trial period. RF, Tab 6 at 10. We find this argument unpersuasive.
      The Board has held that the 30-day rule applicable to tacking service to determine
      whether an individual has completed a trial or probationary period does not apply when
      determining whether prior service may be counted toward the applicable current
      continuous service requirement under 5 U.S.C. § 7511(a)(1). Maibaum v. Department
      of Veterans Affairs, 116 M.S.P.R. 234, ¶ 14 (2011).
      12
        In both Bradley, 69 M.S.P.R. at 597-99, and Hayes, 36 M.S.P.R. at 625, the Board
      agreed with the rule set forth in Roden, but found that it did not apply under the
      particular facts of the case.
                                                                                       11

      reprisal claims; and (3) absent an otherwise appealable action, the Board lacks
      jurisdiction over the appellant’s other claims of retaliation and discrimination.
      Final Order at ¶¶ 5-6; PFR File, Tab 8 at 4-5.       Accordingly, we adopt these
      findings herein. For the reasons set forth above, we affirm the initial decision, as
      modified, to supplement the administrative judge’s jurisdictional analysis, and to
      find that Roden and subsequent decisions relying on the “continuing employment
      contract” theory articulated in Roden are no longer good law.

                                            ORDER
¶20         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit. You must subm it your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
                                                                                 12

Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional     information     is    available    at    the     court’s    website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
