NOTE: This disposition is nonprecedential.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 Dublin, Ohio, for petitioner. 

Calvin M. Morrow, Acting Associate General Counsel, United States Merit 

Systems Protection Board, of Washington, DC, for respondent. 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 intervenor. 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 Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.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. 

___________________________ 

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 February 3, 2006, the Ohio State Farm Service Agency Committee 

issued a decision upholding the County Executive Director's proposal to suspend Ms. 

Levering for 14 days for failing to follow instructions.1

 Shortly thereafter, Ms. Levering 

sought corrective action from the Merit Systems Protection Board by filing an Individual 

Right of Action (“IRA”) complaint with the Board. See 5 U.S.C. § 1221(a). She asserted 

an entitlement to relief based on her contention 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 the 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 file an IRA because it constituted a “rule or 

regulation” conferring jurisdiction on the Merit 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 later removed from employment effective June 11, 2006. 

She has not sought review of that action. 

2007-3088 2 
directive could serve as a rule or regulation that could grant the Board jurisdiction, the 

policy directive cited by Ms. Levering specifically provided that it did not have that effect. 

The administrative judge therefore dismissed Ms. Levering’s IRA on the ground that the 

Board lacked jurisdiction over disciplinary 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 are not themselves federal employees 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 Agric. 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 judge held that she was not covered by the 

remedial provisions of the Civil Service Reform Act, including the Whistleblower 

Protection Act. After the administrative judge’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 the protection of the Whistleblower 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 removals shall occur before the employee 

is given a right to reply and, if the employee chooses, exercises that right. 

5 CFR 752 procedures should be followed, although these actions are not 

taken under the provisions of 5 CFR 752. 

2007-3088 3 
For 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 cases, employees may be detailed or 

reassigned during the notice period. Administrative leave may be used in 

rare cases, with the approval of DAFO [Deputy Administrator for Field 

Operations]. 

The deciding official will make the final decision on suspensions and 

removals. In some cases the proposing and deciding official will be the 

same. . . . 

County office employees suspended for 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—the 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 jurisdiction to the Board because the policy 

directive instructs that, for Farm Service 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 substantive prohibitions of the Whistleblower Protection Act 

2007-3088 4 
2007-3088 5 

against “prohibited personnel practices,” Ms. Levering argues that, having been 

accorded the substantive rights of the Whistleblower Protection 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 directive qualifies as a 

“rule or regulation” within the 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 substantive provisions of 5 C.F.R. § 752, rather than just the 

procedural provisions in that regulation, nothing in the regulation grants a right to a 

“non-employee” to seek relief before the Merit Systems Protection Board. Moreover, 

nothing in the policy directive purports to give the Merit Systems Protection Board 

jurisdiction over IRAs brought by “non-employees” such as Ms. Levering. To the 

contrary, the policy directive specifically states that “[t]hese revisions 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 Protection Board. The Board was therefore 

correct to hold that no rule or regulation granted Ms. Levering the right to bring an 

Individual Right of Action before the Board.