Picking the Best Appeal Procedure

Can an employee of the judicial branch appeal to the MSPB based on prior service with the executive branch?

Can an employee of the judicial branch of government overcome the lack of MSPB jurisdiction over her dismissal by pointing to prior service in a covered position with the executive branch? No, says the U.S. Court of Appeals for the Federal Circuit in a precedential decision. (Thompson v. Merit Systems Protection Board, No. 05-3203, 1/3/06).

Ms. Thompson was employed with the U.S. Probation Office of the Federal Courts in the District of Columbia. This agency is part of the judicial branch that has not been made subject to the jurisdiction of the MSPB. Her position was terminated for lack of funds and she appealed to the Board. When asked to demonstrate that she was in a position that was subject to MSPB jurisdiction, she could not but she argued that her prior service with the executive branch in the U.S. Department of Justice should confer jurisdiction in her specific case. The Board promptly dismissed the case for lack of jurisdiction. (Thompson v. Admin. Office of the U.S. Courts, No. DC0752040704-I-1 (Initial decision, M.S.P.B. October 14, 2004); (Final decision, M.S.P.B. May 12, 2005)

Ms. Thompson decided to try her argument out on the appeals court, but with the same result. Pointing out that the executive branch agency that Ms. Thompson used to work for was “not the agency from which she was terminated…,” the court went on to rule: “The statute cannot reasonably be read to provide ineligible employees of the judicial branch with MSPB appeal rights because of earlier service in the executive branch.” (Opinion p. 3)

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.