NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3088

EILEEN L. LEVERING, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF AGRICULTURE, Intervenor.

David S. Pennington , Wright Law Co., LPA, of D ublin, Ohio, for petitioner. Calvin M. Morrow , Acting Associate General Coun sel, United States Merit Systems Protection Board, of Washington, DC, for responden t. With him on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Steven M. Mager , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for interv enor. With him on the brief were Peter D. Keisler , Acting Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Appealed from: United States Me rit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3088 EILEEN L. LEVERING, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent,

and DEPARTMENT OF AGRICULTURE,

Intervenor.

___________________________ DECIDED: December 18, 2007

___________________________ Before LOURIE, BRYSON, and MOORE, Circuit Judges

. PER CURIAM. DECISION Eileen L. Levering petitions for review of a decision of the Merit Systems Protection Board, Docket No . CH-0752-06-0355-I-2, dismissing her petition for lack of jurisdiction. We affirm

.BACKGROUND Ms. Levering was a Program Technician for the Morrow County, Ohio, Farm Service Agency. On Februar y 3, 2006, the Ohio State Farm Service Agency Committee issued a decision upholding the County Execut ive Director's proposal to suspend Ms. Levering for 14 days for faili ng to follow instructions. 1 Shortly thereafter, Ms. Levering sought corrective action from the Merit System s Protection Board by filing an Individual Right of Action (“IRA”) compla int with the Board. See 5 U.S.C. § 1221(a). She asserted an entitlement to relief based on her cont ention that the 14-day suspension was proposed in retaliation for whistleblowing. The administrative judge who was assigned to the case issued an order to show cause why the action should not be dismissed for lack of jurisdiction on the ground that Ms. Levering was not an “employee” within t he meaning of 5 U.S.C. § 2105, and thus the Board did not have jurisdiction under 5 U.S. C. § 1221(a) to order corrective action. See Hedman v. Dep’t of Agric. , 915 F.2d 1552 (Fed. Cir. 1990) ( holding that the Board lacked jurisdiction over an adverse action appeal by an employee of a state office of the predecessor to the Farm Service Agency). In response to the order to show cause, Ms. Levering did not directly address this court’s decision in Hedman or the statutory definition of “employee,” but argued that a policy directive issued by the United States Department of Agriculture gave her a right to f ile an IRA because it constituted a “rule or regulation” conferring jurisdiction on the Me rit Systems Protection Board under 5 U.S.C. § 1204(a). The administrative judge, however, ruled that even assuming such a policy

1 Ms. Levering was la ter removed from employment effective June 11, 2006. She has not sought review of that action.

2007-3088 2directive could serve as a rule or regulation that could grant the Board jurisdiction, the policy directive cited by Ms. Lever ing specifically provided that it did not have that effect. The administrative judge theref ore dismissed Ms. Levering’s IRA on the ground that the Board lacked jurisdiction over disciplinar y actions involving an employee of a Farm Service Agency established pursuant to 16 U. S.C. § 590h(b)(5). Specifically, the administrative judge noted that Farm Service Agency employees are not appointed by federal employees and thus ar e not themselves federal em ployees as that term is defined in 5 U.S.C. § 2105. Hedman v. Dep’t of Agric. , 915 F.2d 1552 (Fed. Cir. 1990); Miller v. Dep’t of Ag ric. Farm Serv. Agency , 966 F. Supp. 1087 1090 (N.D. Ala. 1997), aff’d , 143 F.3d 1413 (11th Cir. 1998). Because Ms . Levering was not an “employee” as defined in section 2105, the administrative j udge held that she was not covered by the remedial provisions of the Civil Servic e Reform Act, including the Whistleblower Protection Act. After the administrative j udge’s decision became the final decision of the Board, this appeal followed. DISCUSSION Ms. Levering acknowledges that she is not an “employee,” as that term is defined in 5 U.S.C. § 2105. Instead, she argues that a Department of Agriculture policy directive brought her within t he protection of the Whistlebl ower Protection Act and gave the Merit Systems Protection Board jurisdiction over her Individual Right of Action. The policy directive in question provides, in pertinent part, as follows: No suspensions without pay or remova ls shall occur before the employee is given a right to repl y and, if the employee chooses, exercises that right. 5 CFR 752 procedures should be follow ed, although these actions are not taken under the provisions of 5 CFR 752.

2007-3088 3For proposals to suspend for 14 calendar days or less, the employee shall be given at least 15 calendar days to reply.

. . . During the proposal (notice) period, the employee will normally remain in a paid duty status. In certain case s, employees may be detailed or reassigned during the notice period. Ad ministrative leave may be used in rare cases, with the appr oval of DAFO [Deputy Administrator for Field Operations]. The deciding official will make the final decision on suspensions and removals. In some cases the pr oposing and deciding official will be the same. . . . County office employees suspended fo r more than 14 days or removed will have a right to a due process hearing before DAFO. These revisions do not change the final administrative appellate rights of county office employees. There is no right of appeal to MSPB. Ms. Levering argues that the Board has jurisdiction over her IRA because the policy directive is a “rule or regulation” that grants jurisdiction to the Board under 5 U.S.C. § 1204(a), which provides that the Board shall hear all matters committed to its jurisdiction by “law, rule, or regulation.” Therefore, although Ms. Levering is not an “employee” within the meaning of 5 U.S.C. § 2105—t he statute that gives “an employee, former employee, or applicant for employment” the right to seek corrective action from the Board through an IRA—she contends that the policy directive has the effect of adding employees of the Farm Service Agencies to the list of those entitled to bring an IRA before the Board. In particular, she argues that the policy directive should be regarded as a rule or regulation granting ju risdiction to the Board because the policy directive instructs that, for Farm Servic e Agency employees who are proposed for suspension, the “procedures” of 5 C.F.R. § 752 “should be followed.” Because 5 C.F.R. § 752 incorporates the subst antive prohibitions of the Wh istleblower Protection Act

2007-3088 42007-3088 5 against “prohibited personnel practices, ” Ms. Levering argues that, having been accorded the substantive right s of the Whistleblower Pr otection Act by the policy directive, she is necessarily entitled to bring an IRA under 5 U.S.C. § 1221(a). We reject that argument. Even assuming that the policy dire ctive qualifies as a “rule or regulation” within t he meaning of 5 U.S.C. § 1204(a )(1), and even assuming that the reference in the policy directive to “5 CFR 752 procedures” is interpreted to incorporate all of the subst antive provisions of 5 C.F.R. § 752, rather than just the procedural provisions in that regulation, nothing in the r egulation grants a right to a “non-employee” to seek relief before the Me rit Systems Protection Board. Moreover, nothing in the policy directive purports to give the Merit Systems Protection Board jurisdiction over IRAs brought by “non-empl oyees” such as Ms. Levering. To the contrary, the policy directive specifically st ates that “[t]hese revi sions do not change the final administrative appellate rights of county office employees. There is no right of appeal to MSPB.” Thus, nothing in the text of the policy directive indicates that it purports to create rights on the part of Farm Service Agency employees to seek corrective action before the Merit Systems Pr otection Board. The Board was therefore correct to hold that no rule or regulation granted Ms. Levering the right to bring an Individual Right of Ac tion before the Board.