                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1836


BOBBY R. ABERNETHY,

                Plaintiff - Appellant,

          v.

PATRICK DONAHOE, Postmaster General, US Postal Service,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Norman K. Moon, Senior
District Judge. (5:11-cv-30077-NKM-BWC)


Submitted:   November 16, 2012            Decided:    November 21, 2012


Before KING and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Bobby R. Abernethy, Appellant Pro Se.      David         Lew, Rick A.
Mountcastle, Kartic Padmanabhan, OFFICE OF THE           UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Bobby R. Abernethy, a former employee of the United

States    Postal     Service      (“USPS”),        appeals    the     district         court’s

order    granting     Defendant’s         motion      to    dismiss    his       breach     of

contract       action.      The      district       court     dismissed       Abernethy’s

complaint “based on the simple fact that . . . a federal statute

provides that, with narrow exceptions that are not applicable

here, USPS employees serve by appointment, and not by contract.”

Citing    to    39   U.S.C.       § 1001(b)        (2006)    (“Except       as    otherwise

provided in this title, the Postal Service shall appoint all

officers and employees of the Postal Service.”), and O’Neal v.

Donahoe, 802 F. Supp. 2d 709, 714 (E.D. Va. 2011) (collecting

cases wherein breach of employment contract actions against the

USPS were dismissed), the district court determined that “claims

that the USPS breached an employment contract are ‘necessarily

without    merit.’”         For    the    following         reasons,    we       vacate     and

remand to the district court.

               Unlike the claim at issue in O’Neal, and regardless of

the fact that Abernethy was an appointed employee of the USPS,

Abernethy       alleged     the    existence         and     breach    of    a        contract

governing his compensation, rather than a contract governing his

employment      duration.          See    O’Neal,      802    F.    Supp.        2d    at   714

(collecting       cases     to     support         holding     that    “there          is   no

employment       contract     that       can   form    the     basis    for       a     Postal

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employee’s      breach    of    contract   action      against       the       Postal

Service[,]”     where     all   of   the   cases      involved      an     unlawful

discharge or failure to reinstate).                It does not necessarily

follow that because Abernethy could have been terminated at any

time, the Defendant also had the right to alter his compensation

if, as Abernethy alleges, there was a valid contract on that

point.

             Accordingly, we vacate the district court’s order and

remand the matter to the district court for further proceedings. *

We   dispense    with    oral   argument   because     the   facts       and   legal

contentions     are   adequately     presented   in    the   materials         before

this court and argument would not aid the decisional process.



                                                        VACATED AND REMANDED




      *
       By this disposition, we intimate no                   view    as     to   the
appropriate resolution of Abernethy’s claim.



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