                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     RENU B. LAL,                                    DOCKET NUMBER
                         Appellant,                  DC-0752-14-0852-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: March 25, 2015
       HUMAN SERVICES,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           George M. Chuzi, Esquire, Washington, D.C., for the appellant.

           Julie A. Sammons, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                          2

     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review.   Therefore, we DENY the petition for review.          Except as
     expressly MODIFIED by this Final Order, we AFFIRM the initial decision.

                                       BACKGROUND
¶2        The appellant was appointed as a Distinguished Consultant in the excepted
     service pursuant to 42 U.S.C. § 209(f). 2 Initial Appeal File (IAF), Tab 5 at 10-11.
     Having notified the appellant that she may be terminated and that she did not
     have Board appeal rights, id. at 10, the agency terminated her employment
     without providing her with notice of the termination or a right to respond, id.
     at 8-9. The appellant appealed her termination to the Board, arguing that she was
     entitled to notice and an opportunity to respond prior to her termination. IAF,
     Tab 1.   After providing the parties an opportunity to respond to the issue of
     jurisdiction, IAF, Tab 8, the administrative judge dismissed the appeal for lack of
     jurisdiction, IAF, Tab 12, Initial Decision (ID). Specifically, the administrative
     judge found no jurisdiction over the appeal because the appellant was appointed
     under 42 U.S.C. § 209(f) and was therefore excluded from Title 5 provisions with
     respect to both appointment and removal in accordance with 5 C.F.R.


     2
      Section 209(f) provides, “In accordance with regulations, special consultants may be
     employed to assist and advise in the operations of the Service. Such consultants may be
     appointed without regard to the civil-service laws.” 42 U.S.C. § 209(f).
                                                                                            3

     § 752.401(d)(12), which states that chapter 5 adverse action procedures do not
     apply to “[a]n employee whose agency or position has been excluded from the
     appointing provisions of title 5, United States Code, by separate statutory
     authority in the absence of any provision to place the employee within the
     coverage of chapter 75 of title 5, United States Code.” ID at 4-6.
¶3         The appellant has petitioned for review. Petition for Review (PFR) File,
     Tab 2. In her petition for review, as below, the appellant asserts that she was an
     employee (as defined by 5 U.S.C. § 7511) with Board appeal rights and that the
     Board has misinterpreted both the statute governing her appointment and Office
     of Personnel Management (OPM) regulations. PFR File, Tab 2, Tab 7; see IAF,
     Tab 9, Tab 11. The agency responds, as below, that the appellant’s appointment
     was “without regard to the civil-service laws” and that she therefore does not
     have Board appeal rights with respect to her termination. PFR File, Tab 6; see
     IAF, Tab 10. 3

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The Board lacks jurisdiction over this appeal because appointees under 42 U.S.C.
     § 209(f) do not have adverse action appeal rights.
¶4         The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears
     the burden of proving by preponderant evidence that the Board has jurisdiction




     3
       The appellant has submitted a motion asking for leave to file an additional p leading
     concerning the U.S. Court of Appeals for the Federal Circuit’s decision in Archuleta v.
     Hopper, 773 F.3d 1289 (Fed. Cir. 2014), which was decided after she filed her reply.
     PFR File, Tab 9. We find that it is not necessary for the appellant to file an additional
     pleading because we have independently considered the Federal Circuit’s decision in
     Hopper, and we find that it does not affect the outcome of this appeal. See infra ¶ 14
     n.8.
                                                                                         4

     over her appeal. 4 Swango v. Department of Veterans Affairs, 59 M.S.P.R. 235,
     241 (1993). The appellant is not a preference eligible and was employed in the
     excepted service. IAF, Tab 5 at 11. Accordingly, the Board has jurisdiction over
     the appeal of her termination only if she was an “employee” as defined
     by 5 U.S.C. § 7511(a)(1) and her status as an “employee” was not otherwise
     excluded by 5 U.S.C. § 7511(b). 5
¶5           For the reasons outlined below, we clarify that the Board does not have
     jurisdiction over this appeal because the applicable statute excludes her removal
     from our jurisdiction.    As noted above, the appellant was appointed pursuant
     to 42 U.S.C. § 209(f), which provides for appointment of “special consultants”
     that “may be appointed without regard to the civil-service laws.” The appellant
     argues, based upon the language of the statute, that the statute only excludes her
     appointment, and not her removal, from the civil-service laws. PFR File, Tab 2
     at 4.
¶6           “[S]tatutory construction begins with the language of the statute itself.”
     Van Wersch v. Department of Health & Human Services, 197 F.3d 1144, 1148
     (Fed. Cir. 1999).      However, when the language of the statute is unclear,
     legislative history may be used to inform the statutory interpretation. See Bennett
     v. Merit Systems Protection Board, 635 F.3d 1215, 1218-21 (Fed. Cir. 2011). The
     Board has previously examined the history and both the statutory and regulatory
     context of the appointment statute at issue here to determine the meaning of the
     phrase “without regard to the civil-service laws.”       Fishbein v. Department of
     Health & Human Services, 102 M.S.P.R. 4, ¶¶ 9-10, 17 (2006). The Board held
     in Fishbein that the statute was intended to provide the agency with “flexible

     4
      A preponderance of the evidence is that 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. § 1201.56(c)(2).
     5
      The administrative judge correctly determined that an acknowledgement signed by the
     appellant does not affect our determ ination as to jurisd iction. ID at 3-4 (citing
     Metzenbaum v. General Services Administration, 96 M.S.P.R. 104, ¶ 9 (2004)).
                                                                                       5

     hiring authority to meet its specialized needs.” Fishbein, 102 M.S.P.R. 4, ¶ 9. In
     Fishbein, the Board also found that the appellant lacked the right to bring an
     adverse action appeal concerning the termination of his appointment because his
     appointment was not subject to the appointing provisions of Title 5. Id., ¶ 17.
¶7        The Board in Fishbein cited two prior Board decisions interpreting similar
     statutory provisions in support of its holding that employees appointed
     under 42 U.S.C. § 209(f) lack adverse action appeal rights. Id. (citing Chavez v.
     Department of Veterans Affairs, 65 M.S.P.R. 590, 593-94 (1994), and Cummings
     v. General Services Administration (National Archives Trust Fund), 5 M.S.P.R.
     47, 48-49 (1981)). The appellant argues that those decisions do not support the
     Board’s interpretation of 42 U.S.C. § 209(f) in Fishbein.        PFR File, Tab 2
     at 19-24.    She also argues that decisions of our reviewing court support the
     conclusion that section 209(f) does not exclude chapter 75 appeal rights. For the
     reasons set forth below, we disagree.
¶8        The appellant argues that the Board’s decision in Cummings was based upon
     its mistaken deference to the agency’s regulatory interpretation as opposed to an
     interpretation of the appointment statute itself.      PFR File, Tab 2 at 19.
     Mr. Cummings was appointed pursuant to 44 U.S.C. § 2302(2), which provided
     that the National Archives Trust Fund Board was authorized to “appoint . . .
     without regard to the civil-service laws, necessary employees, and fix their
     duties.”    Cummings, 5 M.S.P.R. at 48.    The Board noted that the agency had
     interpreted that statutory language to exclude chapter 75 appeal rights and that
     Congress chose not to act to correct the agency’s interpretation. Id. at 49. The
     Board held that the appellant had “no statutory right of appeal to the Board.” Id.
     Thus, contrary to the appellant’s argument, the Board’s holding in Cummings was
     based upon statutory interpretation. It was therefore appropriate for the Board to
     rely upon Cummings to inform its interpretation of 42 U.S.C. § 209(f) in
     Fishbein.
                                                                                       6

¶9        The appellant also challenges the Board’s interpretation of the appointment
     statute in Chavez. PFR File, Tab 2 at 20-23. Ms. Chavez was appointed pursuant
     to 38 U.S.C. § 4202 (current version at 38 U.S.C. § 7802), which provided,
     “Personnel necessary for the transaction of the business of the Service . . . shall
     be appointed, compensated from funds of the Service, and removed by the
     Secretary without regard to the provisions of title 5 governing appointments in
     the competitive service and chapter 51 and subchapter III of chapter 53 of title 5.”
     Chavez, 65 M.S.P.R. at 593 (citing 38 U.S.C. § 4202). The appellant argues that
     the inclusion of “removal” in the appointment statute differentiates Chavez from
     this case. PFR File, Tab 2 at 17. The appellant also cites the decision of the
     Federal Circuit in Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed.
     Cir. 1995). PFR File, Tab 2 at 22-23. Ms. Todd was appointed under 20 U.S.C.
     § 241(a) (1988 & Supp. V 1993) (repealed 1994), which provided for employment
     of personnel “without regard to the Civil Service Act and rules and the following:
     . . . (4) sections . . . 7511, 7512, and 7701 of Title 5.” The appellant argues that
     because the court in Todd relied upon the statute’s reference to chapter 75 and not
     merely upon the more general reference to the Civil Service Act, reference to the
     latter without the former is insufficient to exclude adverse action appeal rights.
     PFR File, Tab 2 at 22-23. In addition, the appellant cites King v. Briggs, 83 F.3d
     1384 (Fed. Cir. 1996), for the proposition that statutes providing for appointments
     “without regard to the civil-service laws,” will not, without more, foreclose
     adverse action appeal rights. PFR File, Tab 2 at 23. The appointment statute in
     Briggs provided for appointment “without regard to the provisions of Title 5
     governing appointments in the competitive service, or the provisions . . . of such
     title relating to classification and General Schedule pay rates.”        29 U.S.C.
     § 783(a)(1)(1994).
                                                                                            7

¶10         The appellant is correct that the inclusion of “removal” in the original
      statute differentiates Chavez from this case. 6 See Chavez, 65 M.S.P.R. 590, 593
      (citing Pub. L. No. 79-636, § 2(e), 1946 U.S.C.C.A.N. 853, 854). The appellant
      is also correct that the appointment statute in Todd included a specific reference
      to chapter 75. See Todd, 55 F.3d at 1577 (citing 20 U.S.C. § 241(a) (repealed
      1994)). However, we are not persuaded that either Chavez or Todd stands for the
      proposition that certain statutory language or citations are required in order to
      exclude adverse action appeal rights. Regarding Briggs, the Federal Circuit held
      that the appointment statute at issue in that case afforded adverse action appeal
      rights because it excluded certain portions of Title 5 but did not specifically
      exclude chapters 75 and 77. Briggs, 83 F.3d at 1388-89. The Federal Circuit in
      Briggs invoked the maxim “expressio unius est exclusio alterius,” id. at 1388,
      which provides that, where a statute enumerates certain exceptions to a general
      rule, it is preferable not to interpret the statute as containing other unenumerated
      exceptions, see Edwards v. Department of Homeland Security, 110 M.S.P.R. 243,
      ¶ 13 (2008).    In contrast to the appointing statute in Briggs, the generalized
      exclusion of “the civil-service laws” contained in 42 U.S.C. § 209(f) is not
      subject to the same maxim of statutory interpretation. We therefore find that our
      interpretation of section 209(f) is consistent with Federal Circuit precedent.
      The Civil Service Due Process Amendments did not extend appeal rights to
      appointees under 42 U.S.C. § 209(f).
¶11         Next, the appellant argues that the Civil Service Due Process Amendments
      of 1990 (the Amendments) extended Board appeal rights to those appointed
      under 42 U.S.C. § 209(f).      PFR File, Tab 2 at 10-13.         Congress passed the
      Amendments to provide Board appeal rights to certain nonpreference-eligible
      excepted service employees. Pub. L. No. 101-376, 104 Stat. 461 (1990) (codified

      6
        Th is distinction is also supported by the Federal Circuit’s decision in Bennett which
      interpreted the same statute. Bennett, 635 F.3d at 1219-20 (finding that the Secretary’s
      authority to remove employees under the appointment statute in Chavez distinguished
      Chavez from Briggs where such authority was not specified).
                                                                                       8

      at 5 U.S.C. §§ 4303, 7511, 7701).     The Amendments, as codified, expand the
      definition of employee to include:
            [A]n individual in the excepted service (other than a preference
            eligible)—(i) who is not serving a probationary or trial period under
            an initial appointment pending conversion to the competitive service;
            or (ii) who 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.

      5 U.S.C. § 7511(a)(1)(C). The Amendments also specifically excluded certain
      categories of employees but did not specifically exclude those appointed
      under 42 U.S.C. § 209(f). 5 U.S.C. § 7511(b).
¶12        The appellant cites to the House Report relating to the passage of the
      Amendments to argue that the Amendments were intended to extend Board appeal
      rights to her, as a scientist.   PFR File, Tab 2 at 12-18 (citing H.R. Rep.
      No. 101-328 (1989), reprinted in 1990 U.S.C.C.A.N. 695). The report outlines
      that, although certain excepted service employees had already been granted
      appeal rights, or were excluded from appeal rights either based upon their
      employing agency or by virtue of a political or temporary appointment, “[t]he
      balance are attorneys, physicians, teachers . . . chaplains and scientists to whom
      this bill applies.” H.R. Rep. No.101-328 at 3. In response, the agency argues
      that a general reference in the House Report to expanding appeal rights to
      appointees, such as scientists, does not imply that Congress had a general intent
      to extend appeal rights to all excepted service employees. PFR File, Tab 6 at 13.
      The agency also argues that principles of statutory construction disfavor repeal by
      implication such as that urged by the appellant. Id. (citing Rodriguez v. United
      States, 480 U.S. 522, 524 (1987)).
¶13        We agree with the agency that the Amendments were not intended to extend
      appeal rights to appointees under 42 U.S.C. § 209(f). In Todd, 55 F.3d at 1577,
      the Federal Circuit found that the Amendments did not implicitly repeal the
      statute under which Todd had been appointed (20 U.S.C. § 241(a) (repealed
                                                                                                9

      1994)) because nothing in 5 U.S.C. § 7511 indicated that it was meant to
      substitute for or override the appointment statute.              Similarly, there is no
      indication that the Amendments intended to extend appeal rights to appointees
      under 42 U.S.C. § 209(f) by repealing the previous denial of such rights.
      Accordingly, we find that the Amendments did not extend Board appeal rights to
      the appellant.
      The exclusion of Board appeal rights for appointees under 42 U.S.C. § 209(f) is
      consistent with OPM’s regulation at 5 C.F.R. § 752.401(d)(12).
¶14         Lastly, although our decision is based upon our interpretation of 42 U.S.C.
      § 209(f), we note that our interpretation is consistent with OPM’s regulation on
      the matter. 7 The relevant regulation, 5 C.F.R. § 752.401(d)(12), provides that
      adverse action appeal rights are not afforded to an employee whose “position has
      been excluded from the appointing provisions of title 5, United States Code, by
      separate statutory authority in the absence of any provision to place the employee
      within the coverage of chapter 75 of title 5, United States Code.” Although the
      appellant has challenged the validity of this regulation, PFR File, Tab 2 at 26-32,
      we do not invalidate the regulation as the Federal Circuit has indicated that it is a
      permissible interpretation of statute, see Bennett, 635 F.3d at 1221. 8 Consistent
      with 5 C.F.R. § 752.401(d)(12), we find that the appellant’s position is excluded
      from the appointing provisions of Tile 5 and therefore, she is excluded from
      adverse action appeal rights.

      7
        In his in itial decision, the administrative judge stated that “the Board has affirmed the
      application of Section 752.402(d)(12) to 42 U.S.C. § 209(f) hold ing that such persons
      are excluded from title 5’s provisions for both appointment and removal,” and found
      that the Board lacks jurisdiction over this appeal. ID at 5-6. To the extent that the
      administrative judge relied upon OPM’s regulation at 5 C.F.R. § 752.401(d)(12), as
      opposed to the statute itself, as the basis for finding that the Board lacks jurisdiction we
      MODIFY the initial decision.
      8
        The Federal Circuit recently held that OPM’s regulations at 5 C.F.R. §§ 731.203(f)
      and 752.401(b)(10), which excluded suitability determinations from the actions covered
      by chapter 75, were invalid. Archuleta, 773 F.3d at 1298 n.5. However, the Federal
      Circu it d id not address the validity of 5 C.F.R. § 752.401(d)(12) in that case.
                                                                                 10

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.    You must submit 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.
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           11

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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
