# United States **Court of Appeals**  **for the Federal Circuit**

______________________

AMY J. MITCHELL, Petitioner,

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent.

______________________

2013

- 3056

______________________ Petition for review of the Merit Systems Protection Board in No. DA0752110601 -I- 1.

______________________

Decided: January 15, 2014

______________________

K RISTINA C AGGIANO , Duane Morris LLP, of Washin gton, DC, argued f or petitioner. With her on the brief was M ATTHEW C. M OUSLEY , of Philadelphia, Pennsylvania

.

M ICHAEL A. C ARNEY , Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief was B RYAN G. P OLIS UK , General Counsel.

______________________
Before P ROST , R EYNA , and T ARANTO , Circuit Judges.MITCHELL v. MSPB 2

Opinion for the court filed by Circuit Judge T ARANTO

. Dissenting o pinion filed by Circuit Judge P ROST

. T ARANTO , Circuit Judge

. This case involves a jurisdictional limit on the autho rity of the Merit Systems Protection Board to review an agency’s removal of a worker from her job. In late 2008, the Department of Justice hired Amy Mitchell as an Assistant United States Attorney . S he began working while the required background investigation took place

. When the investigation concluded about seven months later

, the Department issued Ms. Mitchell a form stating that her appointment was subject to a two

- year trial period beginning August 2, 20 09

. The Department fired her effective July 29, 2011 , a few days before the two -year period ended. She appealed her removal to the Board

. T he Board may hear Ms. Mitchell’s appeal only if she

was an “employee” as an Assistant United States Atto rney. The statute defines “employee” as someone “ who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less .” 5 U.S.C. § 7511(a)(1)(C)(ii). Ms. Mitchell was an employee under that definition if the time during which her background check was pending counted toward the required “2 years of current continuous service .” The Board concluded that it did not, on the ground that Ms. Mitchell’s service a s an Assistant United States Attorney before August 2, 2009, was under a “temporary appoin tment ,” not “under other than a temporary appointment.” The Board dismissed the appeal

. W e reverse and remand for further proceedings

. B ACKGROUND
Ms. Mitchell began working as a government attorney in 1998, when she became a lawyer for the Social Security Administration

. In 2006, the Department of JusticeMITCHELL v. MSPB 3

appointed her as a Special Assistant United States Atto rney for the Northern District of Texas

— a one

- year a ppointment during which she remained an employee of

, and continued to be paid by, the Social Security Admi nistration. Th e Department twice extended th at appoin tment, and she served f or just over two years in the Special Assistant position

. Effective Dece mber 21, 2008, the Department hired Ms. Mitchell as an A ssistant United States Attorney in the same office

. It issued a Standard Form 50

- B (Notification of Personnel Action) documenting the appointment. As authority for the appointment, t he form invoked 28 U.S.C. § 542, which authorizes Assistant United States Attorney appointments generally. The form also stated that the appointment was not to exceed 18 months

, was “temporary” because of the pending background invest igation , and was “subject to” the suc cessful completion of that investigation

. The background check concluded in late July 2009. In early August 2009, the Department

pro vided Ms. Mitchell another Standard Form 50

- B, again citing 28 U.S.C. § 542 as legal authority for the personnel action

. This time, the “Remarks” section stated that Ms. Mitchell was subject to a two

- year trial period beginning August 2, 2009, during which she could be removed without cause or appeal rights. The Department fired Ms. Mitchell effective July 29, 2011, days be fore the two

- year period was to end, without notice or an opportunity to respond

. Ms. Mitchell promptly filed an appeal at the MSPB. In February 2012, the administrative judge dismiss ed the appeal for lack of jurisdiction, concluding that Ms. Mitc hell w as not an “employee” within the meaning of 5 U.S.C. § 7511(a) and therefore did not have the right to appeal

. Ms. Mitchell filed a petition for review to the full Board, which denied her relief

. She now appeals to this court

. W e have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)

.MITCHELL v. MSPB 4

D ISCUSSION
There is no dispute that very nearly two years’ worth of Ms. Mitchell ’s service as an Assistant United States Attorney— from August 2, 2009, to July 29, 2011

— was “under other than a temporary appointment limited to 2 years or less.” 5 U.S.C. § 7511(a)(1)(C)(ii). We must decide whether she he ld a “ temporary appointment li mited to 2 years or less” during the pendency of her bac kground check in the months before August 2009. If she di d

, then those seven

- plus months do not count toward the required “2 years of current continuous service ,” leaving her just a few days shy of the two

- year threshold

. If she did not

, then she worked for more than two years in the same or similar position s and she comes within the statutory definition of an “employee” who may appeal to the Board. Making that “ legal determination ” de novo, Roy v. Merit Sys tems Protection Board , 672 F.3d 1378, 1380 (Fed. Cir. 2012) , w e conclude that the second view is the better one

. 1

A

Title 5 limits t he B oard’s jurisdiction over federal workers’ appeals based on both the nature of the perso nnel action being contested and the employment status of the individual complainant

. This case is about the latter.

1 The Board insists on de novo review of its statut ory ruling, rejecting any deference under Chevron

, U.S.A., Inc. v. Natural Resources Defense Council

, Inc. , 467 U.S. 837 (1984)

. A ny Chevron deference would be to regul ations of the Office of Personnel Management

. See 5 U.S.C. § 7514; Wilder v. Merit Sys. Prot. Bd. , 675 F.3d 1319, 1322 (Fed. Cir. 2012). Those regulations produce the same result as de novo review , which, as indicated infra , looks to those regulations

. Accordingly, w e need not decide whether to give Chevron deference in this case.MITCHELL v. MSPB 5

A n “employee” has t he right to appeal certain adverse action s to the Board

. 5 U.S.C. §§ 7701(a), 7512, 7513(d)

. Section 7511 defines what “ employee” means for such

purposes

. Id. § 7511(a). (That definition modifies, for adverse actions, the general definition of a federal civil

service “employee” set out in 5 U.S.C. § 2105.) It is u ndisputed that, for Ms. Mitchell, as a person in the “excep ted service ” not eligible for a preference, qualification as an “employee” depends on whether, upon her July 2011 firing, she h ad “ completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment li mited to 2 years or less .” Id. § 7511(a)(1)(C) (ii) ; Van Wersch v. Dep’t of Health & Human Servs. , 197 F.3d 1144, 1149

- 50 (Fed. Cir. 1999) (discussing 1990 addition of provision)

. T o calculate the length of Ms. Mitchell’s “current contin uous service ,” we must ask whether she was in a “temp orary appointment limited to 2 years or less ” during her first seven

- plus months as an Assistant United States Attorney, starting in December 2008.

Our answer starts with the text , where our task is to

“ give effect, if possible, to every clause and word of [the] statute, avoiding, if it may be, any construction which impl ies that the legislature was ignorant of the meaning of the language it employed. ” Inhabitants of Montclair Twp. v. Ramsdell , 107 U.S. 147, 152 (1883)

. That princ iple counsels against reading “temporary” to have no meaning beyond “limited in time” or “fo r a limited period .” Such a reading would effectively erase the term from the provision: the result would be the same as if the statute referred simply to “other than a[n] appointment limited to 2 years or less.” The word “temporary” should be given independent meaning

, if possible.
Several sources might provide such meaning, but t he first and most natural place to look is in regulations of the agency charged with implementing the statute, OPM. See 5 U.S.C. § 7514. It makes sense for Congress to inc ludeMITCHELL v. MSPB 6

the word “temporary” and allow its definition to depend, at least in part, on OPM determinations. In fact, t he predominant and longstanding use of the word “temp orary” in the context of federal appointments is to refer to appoint ments of one year or less

. An OPM excepted- service regulation states : [W] hen agencies elect to make temporary, inte rmittent, or seasonal appointments in Schedule A, B, C, or D, those terms have the following mea ning: (1) Temporary appointments, unless othe rwise specified in a particular Schedule A, B, C, or D exception, are made for a specified period not to exceed 1 year and are subject to the time limits in paragraph (b) of this section. Time

- limited a ppointments made for more than 1 year are not considered to be tempora ry appointments, and are

no t subject to these time limits. 5 C.F.R. § 213.104(a). When OPM promulgated the regulation , it made clear that it was newly making un iform a one

- year standard for “temporary” appointments that already appeared in OPM regulations. T he first sentence of the “Summary” announced that OPM was “revising its regulations governing use of temporary appointments ( i.e., appointments limited to 1 year or less )
to set a uniform service limit for such a ppointments in both the competitive and the excepted service at 1 year with no more than one 1

- year extension (24 months total service).” 59 Fed. Reg. 46,895

- 01 (Sept. 13, 1994) (emph asis added); see Stern v. Dep’t of the Army , 699 F.2d 1312, 1313 (Fed. Cir. 1983) (“It was a temporary appointment (

i.e. , one year or less

, 5 C.F.R. § 316.401 (1982) ) . . . .” ) (emphasis added)

. This understanding has persisted. See

, e .g. , 63 Fed. Reg. 63,781, 63,783 (Nov. 17, 1998) (“Excepted appointments not

- to

- exceed 1 year are defined in 5 CFR 213.104(a)(1) as temporary and are subject to the maximum time limits [of] 5 CFR 213.104(b)(1).”)

.MITCHELL v. MSPB 7

OPM has long distinguished “temporary” appoin tments from others —given labels like “term” and “time

limited”

— made for different but still limited period s

. For example, when adding the last sentence of 5 C.F.R. § 213.104(a) , which refers to “[t]ime

- limited appoin tments,” the agency explained both that “[t] he existing regulations provide that if the appointments are for 1 year or less, by definition, they are temporary appoin tments ” and, in addition, “that agencies continue to have the ability to make appointments with time limits of more than 1 year [ and that t] hese time

- limited appointments are not subject to the restrict ions for temporary appoin tments.” 62 Fe d. Reg. 18,505 (Apr. 16, 1997). T hese distinctions existed long before the relevant provision of 5 U.S.C. § 7511 (a) was added to the statute in 1990

. In 1968, for instance , OPM regulations provided that “[a]n
agenc y may make a temporary limited appointment only for a definite period of 1 year or less,” 33 Fed. Reg. 12,402, 12,423 (Sept. 4, 1968) (5 C.F.R. § 316.401), and that “[t]he Commission may authorize an agency to make a term appointment for a period of more t han 1 year on request of the agency and after determination

. . . that the e mployment need is for a limited period of 4 years or less,” id. (5 C.F.R. § 316.301). See also Stern , 699 F.2d at 1313 (discussing 1982 regulation); 45 Fed. Reg. 8,541, 8,544 (Feb. 8, 1980) (“time limited” appointments i n the Senior Executive Service)

. If we were to rely entirely on the longstanding regul atory meaning of “temporary

, ” the conclusion would be that Ms. Mitchell never held a “temporary ” appointment

, because (as is undisputed) her appointment as an Assistant United States Attorney was never limited to a period of one year or less

. Even the December 2008 Standard Form 50 -B stated that her appointment, subject to a background investigation, was not to exceed 18 months

, not one year. But we need not rely entirely on the regul a-MITCHELL v. MSPB 8

tory treatment, because the conclusion is further suppor ted by two additional considerations.
First, nothing indicates that the Department of Ju stice ever con templated that the job it was giving M s. Mitchell, even in December 2008, w as a short

- term job. Rather, it invoked the same legal authority, 28 U.S.C. § 542, for Ms. Mitchell’s appointment as an Assistant United States Attorney throughout her tenure in that position , from December 2008 onward

. The reason for the time limit in th e December 2008 Standard Form 50 -B was not any “expectation” that the need for Ms. Mitchell’s service in the job w ould come to an end. See H.R. Rep. No. 101

- 328, at 4 (1989) (focusing on “expectation of continuing employment”). It simply reflect ed the fact that

, operating under its waiver of the “ pre appointment investigative requirement ,” the Department had only “a limited period” to complete the background investigation when appointing Ms. Mitchell

. 5 C.F.R. § 7 32.202 (a)(1) (emphasis added) ; see also Dep’t of Justice, Oversight of Background Investigations by the Security and Emergency Planning Staff , Report No. I

- 97

- 06, at App. II (July 1997). Those circumstances are quite different from her a ppointments as a S pecial Assistant United States Attorney under 28 U.S.C. § 543, one

- year appointment s that wer e made to fill short

- term needs

. Second, determining that Ms. Mitchell did not hold a “temporary” appointment after December 2008 serves the statute’s purpose. T he reason for the two

- year trial period in § 7511 (a)(1)(C)(ii) is to “‘ensure that the agency can fully judge an employee’s performanc e and yet vest these employees with important job protections.’” Van Wersch , 197 F.3d at 1149. Here, the parties stipulated that Ms. Mitchell held the “same or similar” position s from December 2008 through her termination, indicating that nothing meaning ful about her job duties changed

once the background investigation was completed. There is thus no reason to think that the Department lacked theMITCHELL v. MSPB 9

contemplated amount of time for judging Ms. Mitchell’s performance within the two

- year period starting on December 21, 2008.
In sum, the statute and regulations, and the partic ulars of Ms. Mitchell’s tenure as an Assistant United States Attorney

, lead us to conclude that she spent no part of that tenure in a “temporary” appointment as that term is used in § 7511( a).

B

T he Board ’s a rguments in support of its contrary co nclusion are unpersuasive

. T he Board has relied on certain statements from our precedents . B ut it has given the
statements unduly broad effect by taking the m out of
context. In at least two instances, we have said that a co mplainant fell outside § 7511(a)(1)(C)(ii) because that person had not spent two continuous years in a “ perm anent ” position. See Roy , 672 F.3d at 1382; Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 41 1-1 2 (F ed. Cir. 1995)

. Those decisions, however, cannot be taken to establish that time spent in a “ permanent ” position is the only time that qualifies under § 7511(a)(1)(C)(ii). There are various types of f ederal appoint ments

— some without end dates, like permanent, seasonal

, or intermittent , and some with end dates, like temporary, term, or time

- limited

. S ee, e.g. , 5 C.F.R. § 213.104(a). T he statute excludes only th ose which are “temporary ,” which is not the only altern ative to “permanent.” No ne of our precedents had occasion to address these distinctions, as none actually involved a dispute about whether the appointment at issue was or was not “temporary,” or considered the meaning of “ temporary ” in § 7511 (a) alongside 5 C.F.R. § 213.104 and other OPM regulations

. See Roy , 672 F.3d at 1382 ; Ca rrow v. Merit Sys. Prot. Bd. , 626 F.3d 1348 , 1352 (Fed. Cir. 2010) ; Forest , 47 F.3d at 411

- 12 . ( Weidel v. Dep artmen t of Justice , 230 F.3d 1380 (Fed. Cir. 2000) (table) , involved aMITCHELL v. MSPB 10

similar issue, but the decision is non

- precedential, and the court recognized that the argument s were not fully developed.) Precedent thus does not establish a concl usion different from the one we reach here.

The Board urges us to discount th e significance of 5 C.F.R. § 213.104 on the ground that OPM did not invoke § 7511(a) in promulgating it. That is not a sufficient reason to eschew reliance on the regulation in interpre ting and applying “temporary” in the statute. The altern ative interpr etation on offer would run afoul of the general rule against nullifying words in the statute, and the regulation embodies a n interpretation deeply embedded in federal personnel law and a policy promoting a uniform application of that interpretation

. At le ast where other considerations support the same conclusion, it makes good sense to construe the statute in accordance with this regulation. Cf. Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 706 (1991) (adopting interpretation that harmonizes statute wit h regulations)

. The Board highlights the fact that the December 2008 Standard Form 50 -B (SF

- 50) used the term “temporary” to refer to Ms. Mitchell’s appointment “pending adjudic ation of a full

- field background check .” But we have held that “the SF- 50 is not a legally operative document co nt rolling on its face an employee’ s status and rights.” Grigsby v. U.S. Dep’t of Commerce , 729 F.2d 772, 776 (Fed. Cir. 1984)

. And we think that, as between the label “temporary” and the actual stated term of 18 months for the particular job of Assistant United States Attorney, the latter must control. We n eed not go any further, or offer an affirmative view of the correct label to apply to the pre

August 2009 portion of Ms. Mitchell’s tenure as an Assi stant United Stat es Attorney. Cf. Weidel , 230 F.3d 1380 (expressing “doubt as to the source of authority for [a

‘ temporary ’] appointment” as an Assistant United States Attorney)

.MITCHELL v. MSPB 11

Finally, the Board observes that Ms. Mitchell served for only seven- plus months while her background check was pending, suggesting that even if “temporary ” a ppointments are appointments for one year or less

, that standard makes no difference here because seven- plus months is still less than a year

. But the regulatory and
stat utory scheme requires that the nature of Ms. Mitc hell’s appointment be judged at the outset

, without regard
to service ultimately complet ed

. OPM regulations , for example, define a temporary appointment based on the time limit imposed when the appointment is “made.” 5 C.F.R. § 213.104(a)(1 )

. This makes good sense. Allowing a federal appointment to change character over time based on time served

— if, say, a permanent appointment bec a me seasonal or temporary when an employee last s only a few months

— would co nflict with § 7511(a)’s express provision for so

- called “ tac king ” of time in consecutive jobs. Section 7511(a) permits employees to combine time spent in “the same or similar ” jobs , if one immediately follows the other, in order to get to the requisite two years of “current continuous service

. ” But under the Board’s suggestion, someone who spends twenty years in one permanent position and then ten months in a “similar

, ” permanent position before being terminated, see , e.g. , Mathis v. U nited S tates Posta l Service , 865 F.2d 232 (Fed. Cir. 1988)

, would be a “temp orary” employee based on the final ten months of service, and would be stripped of a ll appeal rights . That cannot be how the statute is supposed to work. Cf. Gri g sby , 729 F.2d at 775 n.9 (counseling against “reduc[ing] an e mployee’s appointment to a form manipulable at any time by the agency”). The length of time that Ms. Mitchell actually served before the background investigation was completed, therefore, does not alter our analysis of whether she held a “ temporary ” appointment at the time. In so concluding, we do not depart from “the doctrine of harmless error.” Dissent at 2. That doctrine does notMITCHELL v. MSPB 12

apply to the only question we must answer, namely, the character of the Department’s ap pointment action

, which determines whether Ms. Mitchell was an “employee” and hence whether the Board erred in its jurisdictional ruling

. There is no doubt that, i f Ms. Mitchell was an “employee,” the Board’s jurisdictional ruling was a harmful error, as it deprived Ms. Mitchell of a hearing on her rights regarding her removal. But on the threshold assessment of the Department’s appointment, “harmless error” has no role.
As all of the cases cited by the dissent confirm, the subject of th e harmless

- error doctrine, and of 5 U.S.C. § 7701(c)(2), is “error” in the specific sense of a violation of legal requirements

. In that event, the court must inquire

, under proper standards, into whether the bottom

- line result would have been different had the requirement s been met . But the re has been no suggestion here , by
anyone, that the Department’s December 2008 appoin tment committed any violation of legal requirements . It simply made a choice about the terms of the appointment. Although the Department may now wish that it had made a different choice, our jurisdictional analysis must ask about the character of the appointment actually made

— specifically, whether it was a “temporary” appointment. Th ere being no legal violation, there is no basis for us to ask what re sult would have occurred in the absence of such a violation. “Harmless “error” analysis is thus a mismatch for the issue currently before us. Of course, t o the extent that Ms. Mitchell’s claim on the merits before the Board concerns an alleged Department failure to follow procedures required when an employee is removed

, a harmless error analysis may be appropriate, but that is for the Board to consider on remand.

C ONCLUSION
We conclude that Ms. Mitchell did not hold a “temp orary appointment limited to 2 y ears or less ” during her roughly two

- and -a- half year s as an Assistant UnitedMITCHELL v. MSPB 13

States Attorney. Accordingly, she was an “employee” under § 7511(a) and had the right to contest her removal at the Board. We therefore reverse and remand for fu rther proceedings.

REVERSED AND REMANDE D

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

AMY J. MITCHELL, Petitioner,

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent.

______________________

2013

- 3056

______________________ Petition for review of the Merit Systems Protection Board in No. DA0752110601 -I- 1.

______________________

P ROST , Circuit Judge , dissenting. I respectfully dissent from the majority’s opinion r eversing the Merit Systems Protection Board’s (“ Board’s ”) decision on Ms. Mitchell’s appeal rights. T he majority concludes that since Ms. Mitchell’s eighteen month a ppointment exceeded the twelve month limit set forth in 5 C.F.R. § 213.104(a)(1), her initial appointment cannot be cla ssified as temporary. Even accepting the majority’s view that 5 C.F.R. § 213.104(a)(1) applies to 5 U.S.C. § 7511(a)(1)(C)(ii)

, the fact remains that Ms. Mitchell only served less than eight months of her initial eighteen month appointment, making the Department of Justice’s (“DOJ’s”) alleged e rror in granting Ms. Mitchell a temp orary eighteen month appointment harmless. Therefore, I conclude that Ms. Mitchell’ s eight months served pendingMITCHELL v. MSPB 2

the successful completion of her background check should not be tacked on to her time served in a permanent pos ition for purposes of determining appeal rights

. The majority insists that “the regulatory and statut ory scheme requires that the nature of Ms. Mitchell’s appointment be judged at the outset

, without regard to service ultimately c ompleted.” Majority Op. at 11 . Th us, the majority fails to recognize that the government should benefit from the doctrine of harmless error. T his court routinely require s employees to not only show that the agency erred but also to show that the error was harmful. See, e.g., Ward v. U.S. Postal Serv., 634 F.3d 1274, 1281

- 82 (Fed. Cir. 2011) (requiring plaintiff to show harmful error in an agency’s procedure in order to es tablish r eversible procedural error); Diaz v. Dep’ t of the Air Force

, 63 F.3d 1107, 110 9 (Fed. Cir. 1995) (“ [W] e have previously held that an employee challenging an agency action has the burden to prove that a violation of a statutory proc edure was harmfu l.”); Handy v. U.S. Postal Serv ., 754 F.2d 335, 337

– 38 (Fed. Cir. 1985) (“It is insufficient simply to show that a statutory procedure was not followed at the agency level. Harmful error must be shown.”). And in this case Ms. Mitchell has failed to show that the DOJ’s error in using an eighteen month temporary appointment rather than a twelve month appointment was harm ful to her

, given that she served less than eight months under the initial temporary appoint ment

. The DOJ’s alleged error is rendered even more inconsequential by the fact that 5 C.F.R. § 213.104(b)(1) authorizes agencies to e xtend temporary appoint ment s for an additional twelve month s , for a total period that exceeds the eighteen month temporary appointment at issue here. Thus, I conclude that Ms. Mitchell has failed to show that the DOJ’s error was harmful.
The majority further relies on o ther “ considerations ” surrounding the nature of Ms. Mitchell’s position to support its conclusion, stating that “nothing indicatesMITCHELL v. MSPB 3

that the [DOJ] ever contemplated that the job it was giving Ms. Mitchell, even in December 2008, was a short

term job.” Majority Op. at 8. The majority also concludes that determining that Ms. Mitchell did not hold a “temp orary” appointment after December 2008 serves the st a tute’s purpose to “ensure that the agency can fully judge an employee’s performance and yet vest these employees with important job protections.” Id. (citing Van Wersch v. Dep’ t of Health & Human Servs ., 197 F.3d 1144, 1149 (Fed. Cir. 1999) ).
However, I do not find the se considerations persu asive. The DOJ’s a lleged intent of continu ing Ms. Mitc hell’s employment is diminished by the fact that the agency noted in bo th the SF

- 50 and SF

- 52 forms that it considered her initial appointment to be temporary. Fu rther, while the legislative history does indicate that it was Congress’s intent to give employees in similar positions appeal rights after two years of service

, if Congress had intended to count temporary service in that calculation, it would not have cle arly excl uded such service in 5 U.S.C. § 7511(a)(1)(C)(ii). For the foregoing reasons , I conclude that Ms. Mitc hell’s time served pending the completion of her bac kground check was time served in a temporary posi tion. Since Ms. Mitchell has failed to show that , prior to her termination, she completed two years in an excepted service position that was not temporary , I would not grant appeal rights under 5 U.S.C. § 7511(a)(1)(C)(ii). Ther efore, I would affirm the final order of the Board

.