Ann M. McCormick v. Department of the Air Force, No. 02-3031 (Fed. Cir. Oct. 4, 2002).

• The Merit Systems Protection Board (MSPB) has jurisdiction when an employee meets the definition of "employee" provided by 5 U.S.C. 7511(a) (1) (I) or (ii).

The appellant entered the Federal competitive service on June 2, 1991, as a career conditional employee of the Department of Health and Human Services. Her appointment was subject to completion of a one-year probationary period, which she subsequently completed. On August 30, 1999, the appellant requested a voluntary change of appointment to the position of contract negotiator at Tinker Air Force Base. The request for change of appointment was accompanied by a Standard Form 52, "Request for Personnel Action," dated August 29, 1999, which referred to the action as a "termination/transfer out." She was appointed to the position of contract negotiator effective August 29, 1999. As part of her appointment to the Department of the Air Force, the Department issued a Standard Form 50, "Notification of Personnel Action," referring to the appellant as a "conditional employee" subject to a one-year probationary period beginning August 29, 1999. On February 22, 2000, her employment with the Air Force was terminated. The Standard Form 50 issued by the Air Force stated that the termination was during her probationary period.

The appellant appealed to the MSPB and the Board issued an initial decision dismissing the appeal for lack of jurisdiction. The Board held that the appellant was a probationary employee and, as such, had only limited appeal rights as provided under 5 CFR 315.806. The full Board denied review and the Federal Circuit subsequently affirmed. On May 15, 2002, the appellant timely filed a petition for rehearing.

The Board grants jurisdiction under 5 U.S.C. § 7701(a), which provides "[a]n employee . . . may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation." Removal from employment is an appealable action where the individual qualifies as an "employee" at the time of her removal by the agency, citing Van Wersch v. Dep't of Health & Human Services, 197 F.3d 1144, 1147 (Fed. Cir. 1999) [citing 5 U.S.C. §§ 7512(1), 7513(d) (1994)]. The term "employee" is defined by statute under 5 U.S.C. § 7511(a), which provides:

1. For the purpose of this subchapter--
   1. "employee" means--
      1. an individual in the competitive service--
         1. who is not serving a probationary or trial period under an initial appointment; or
         2. who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;
      2. a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions--
         1. in an Executive agency; or
         2. in the United States Postal Service or Postal Rate Commission; and
      3. an individual in the excepted service (other than a preference eligible)--
         1. who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or
         2. 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;

The appellant did not meet the definition of employee under subsection (A)(I), but did meet the definition under subsection (A)(ii). The question presented was whether an individual who is excluded from "employee" status under subsection (A)(I) was an "employee" if she met the definition provided in subsection (A)(ii).

McCormick cited the Federal Circuit's decision in Van Wersch, in which the Court construed the language of 5 U.S.C. § 7511(a) (1) (C) as providing two alternative definitions of employee status, and held that an individual could establish Board jurisdiction by satisfying either alternative. The Court in Van Wersch construed the conjunction "or" as being disjunctive. The Court considered the government's arguments that the two definitions were not alternatives, but dismissed those arguments stating:

We have carefully considered the legislative history of 5 U.S.C. § 7511(a)(1)(C) and the government's argument based on that history. Indeed . . . we recognize the force of the government's argument as far as what the legislative history tells us about Congressional intent. If the language of § 7511(a)(1)(C) could fairly be read as ambiguous, the government would have a compelling case . . . . However, the language of § 7511(a)(1)(C) cannot be so read. On the contrary . . . it is crystal clear. Given our holding in Van Wersch with respect to subsection (C) of § 7511(a) (1), there is no basis for a different result when construing the language of subsection (A) of that same statute. Both 5 U.S.C. §7511(a)(1)(A) and (C) provide two definitions separated by the conjunction "or." Under Van Wersch, we must treat subsection A as providing alternative definitions.

In summary, under Van Wersch, the MSPB has jurisdiction when an employee meets the definition of "employee" provided by subsection (I) or (ii). Therefore, the appellant's complaint for lack of jurisdiction was reversed and her case was remanded for further proceedings.

The issue presented in this decision is one of statutory construction. More specifically, the Federal Circuit, in analogizing McCormick to Van Wersch, found that 5 U.S.C. § 7511(a)(1)(A) provides two alternative definitions of "employee" by fulfilling either of them. As a result, the appellant in this case was found to be an "employee" under subpart (ii) based upon her prior Federal service, even though her separation occurred during her probationary period. In other words, she met the requirements of 7511(a)(1)(A)(ii) because she had completed one year of current continuous service. OPM strongly believes that this outcome is wrong and contrary to the Civil Service Reform Act of 1978, and subsequent amendments. OPM believes that Congress' intent was clear: 5 U.S.C. § 7511 (a)(1)(A) does not provide for two alternative definitions of an employee. OPM and the Department have sought en banc review of the court's decision.