Visit FedSmith.com to subscribe to our free email list!

Excepted Service Appointee Not Entitled to Review of Termination

A DEA agent who omitted information on prior workplace discipline in his application had no right of appeal to the MSPB.

In Holland v Merit Systems Protection Board (CAFC No. 2019-1388 (nonprecedential), 1/6/20), the appeals court agreed with the MSPB that it lacked jurisdiction to hear Mr. Holland’s appeal from his probationary probation.

These facts are as explained in the court’s decision:

Mr. Holland was a local police officer for some six years before he applied for and was provisionally appointed to a special agent position with the Drug Enforcement Administration (DEA) of the Department of Justice. While in that police position, he had three “corrective action” and three letters of disciplinary action issued against him. However, when Holland filled out the DEA electronic questionnaire as part of his application, he answered “no” to the question whether he had “received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy.” (Opinion p. 2)

While a background investigation was being completed on Holland, DEA offered him a special agent position. He was permitted to begin work, subject to removal If the background investigation revealed “any previously unknown or discrepant information..that would have had a negative impact on [his] selection.” (p. 3). Holland was given an excepted service appointment with the possibility of receiving a career appointment in “not less than three years and not more than four years.” (p. 3) Further the excepted appointment letter indicated he was subject to a two-year probationary period.

The Office of Personnel Management’s background investigation not surprisingly uncovered Holland’s previous disciplinary record with the police department. When questioned by the investigator, Holland claimed he had answered “no” to the question of prior discipline based on the advice of a friend since the discipline was “common knowledge” and Holland “was not trying to hide” his record. (p. 3)

Once it received the results of the background investigation, the DEA terminated Holland from his excepted service position during his probationary period, citing his failure to provide “complete and truthful information” in his employment application questionnaire. (p. 4)

Holland appealed to the Merit Systems Protection Board, which concluded it did not have jurisdiction over his appeal. Holland then took his case to the federal appeals court, gamely advancing several theories as to why the MSPB should take his appeal. However, the appeals court was unpersuaded and has sustained the Board’s dismissal of Holland’s appeal for lack of jurisdiction.

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.