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Federal Employee Must Have Continuous Service to Bring Suit

By Tanya Roth, Esq. on March 16, 2012 10:03 AM

Employee or not an employee? That is the question under 5 U.S.C. sec. 7511.

Susan G. Roy brought suit before the U.S. Court of Appeals for the Federal Circuit in a case stemming from the termination of her appointment as an Immigration Judge by the Department of Justice.

The Court of Appeals dismissed her appeal for lack of jurisdiction, on the grounds that Roy was not an “employee” under 5 U.S.C. sec.7511(a)(1)(C)(ii).

The facts

Susan Roy was employed as an attorney from 2000 to 2008 by the Department of Homeland Security (DHS).

For several months in 2008, she served as a temporary Immigration Judge in the Department of Justice, for a term not to exceed eighteen months. She became permanent and served as Judge until 2010, when she was terminated for alleged misconduct.

She appealed her termination to the Merit Systems Protection Board and invoked 5 U.S.C. sec.7511(a)(1)(C)(ii) for jurisdiction. She was deemed not be an "employee" under his section and thus did not have the right to an appeal.

The decision

The rule is as follows:

An employee, or applicant for employment, 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.

Under the statute invoked by Roy, an employee is one 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.

Remember that Roy went through a period where she was a temporary appointee. Thus, in light of that temporary appointment, was Roy able to satisfy the "current continuous service" requirement?

Unfortunately for Roy, the Court of Appeals held that she could not meet that requirement. While she asserted that she could tack on two periods of service, even if the two were separated by a temporary appointment; the court rejected this argument by reading the statute as requiring two years of continuous, permanent service.

As such, the Board was found to be correct in declining to exercise jurisdiction on the appeal.

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