It’s A Free Country: Let’s Go To Court

Can a federal contractor be an applicant for federal employment? Can a federal contractor have the MSPB review his termination just as it would for a federal employee? Now we know the answer.

Using a creative argument that only a pro se plaintiff would have the temerity to advance, an employee of a government contractor tried to convince the Federal Circuit Court of Appeals that he should be considered an applicant for government employment so that the Merit Systems Protection Board would have jurisdiction to hear his appeal.

Leon Thompson was employed by a company that in turn contracted with the Department of Homeland Security to provide services at the LA International Airport. The contract required that Thompson get a government security clearance. After reviewing the results of Thompson’s background investigation, DHS found him unsuitable for employment on the contract project. His company then decided to terminate Thompson’s employment.

Representing himself, Thompson appealed to the MSPB. The AJ concluded that Thompson was neither a federal employee nor an applicant for employment and therefore dismissed the appeal for lack of jurisdiction. (Thompson v. Dep’t of Homeland Sec., No. SF-3443-05-0034-I-1 (M.S.P.B. Dec. 10, 2004)) Undaunted, Thompson appealed to the Board. The Board dutifully looked at the case, found that there was no new evidence and no error on the AJ’s part, and denied Thompson’s petition for review.

Still undaunted and apparently not at all hesitant to waste a federal court’s time as well, Thompson sought review of the final MSPB decision by the Federal Circuit. In an odd twist, the court did have jurisdiction because Thompson was seeking review of an MSPB final decision—forget the fact that the MSPB itself plainly did not have jurisdiction.

In Thompson v. Merit Systems Protection Board (C.A.F.C. No. 05-3122, August 25, 2005), the Federal Circuit fortunately made short work of this case. The court pointed out that the Board’s jurisdiction is limited by law to petitions filed by “an employee or applicant for employment.” Thompson conceded that he did not meet the definition of “employee”, but he argued that he should be treated as an applicant for employment by virtue of the government forms he was required to fill out in order to get a security clearance. The court held that the term “applicant for employment” applied only to persons who were seeking employment as federal employees. Thompson did not meet this test; therefore the MSPB correctly dismissed his appeal for lack of jurisdiction.

This seems pretty much like a “no-brainer.” But, just in case anyone else out there had any doubt at all about what the term “applicant for employment” meant, now it’s settled. is wondering whether Mr. Thompson will throw in the towel or go for it and file a petition for cert. with the U.S. Supreme Court. We’ll keep you posted.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.