United States Court of Appeals 

for the Federal Circuit ______________________ 

RENU B. LAL,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES,

Intervenor

______________________ 

2015-3140

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-14-0852-I-1.

______________________ 

Decided: May 11, 2016

______________________ 

GEORGE CHUZI, Kalijarvi, Chuzi, Newman & Fitch, 

P.C., Washington, DC, argued for petitioner. Also represented by RICHARD RANDOLPH RENNER. 

CALVIN M. MORROW, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, argued 

for respondent. Also represented by BRYAN G. POLISUK. 
2 LAL v. MSPB

RETA EMMA BEZAK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for intervenor. Also represented 

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

REGINALD T. BLADES, and ERIN K. MURDOCK-PARK. 

______________________ 

Before MOORE, O’MALLEY, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Renu Lal was terminated from her position as a distinguished consultant at the Centers for Disease Control, 

a component of the Department of Health and Human 

Services. Ms. Lal appealed her removal to the Merit 

Systems Protection Board, which concluded that it lacked 

jurisdiction over Ms. Lal’s removal because she had been 

appointed pursuant to 42 U.S.C. § 209(f), “without regard 

to the civil-service laws.” While we agree with the Board 

that § 209(f) places Ms. Lal into the excepted service, it 

does not exempt her from the Civil Service Due Process 

Amendments of 1990, which provide appeal rights to 

certain excepted service employees. Accordingly, we 

reverse the Board’s decision and remand for further 

proceedings.

I 

Ms. Lal was appointed as a distinguished consultant 

in the excepted service pursuant to § 209(f), which provides that consultants “may be appointed without regard 

to the civil-service laws.” The agency understood this to 

mean that Ms. Lal was not subject to the statutory due 

process requirements of the civil-service laws under title 5

of the United States Code, and terminated her employment without providing notice of the termination or a 

right to respond, as would ordinarily be required by the 

civil-service laws. Ms. Lal appealed to the Board, which 

concluded that § 209(f)’s “appointed without regard to the 
LAL v. MSPB 3

civil-service laws” language deprived the Board of jurisdiction. Ms. Lal appeals. 

II 

Our review of the Board’s decisions is limited by statute. Under 5 U.S.C. § 7703(c), we set aside any action, 

finding, or conclusion that is: (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

the law; (2) obtained without procedures required by law, 

rule, or regulation having been followed; or (3) unsupported by substantial evidence. The Board’s determination 

that it lacked jurisdiction is a question of law that we 

review de novo. Bennett v. Merit Sys. Prot. Bd., 635 F.3d 

1215, 1218 (Fed. Cir. 2011). “The [Board’s] jurisdiction is 

limited to those matters over which it has been given 

jurisdiction by law, rule or regulation.” Id. And, “[a]s the 

petitioner, [Ms. Lal] bears the burden of proving the 

[Board’s] jurisdiction over her appeal by a preponderance 

of the evidence.” Id. 

Title 5 limits the Board’s jurisdiction over federal 

workers’ appeals based on both the nature of the personnel action being contested and the employment status of 

the individual complainant. 5 U.S.C. §§ 7701(a), 7512, 

7513(d). “Taken together, these statutory provisions 

make clear that tenured employees—those individuals 

who meet the definition of an ‘employee’ set forth in 

§ 7511—can seek Board review of adverse actions as 

defined in § 7512, including removals.” Archuleta v. 

Hopper, 786 F.3d 1340, 1348 (Fed. Cir. 2015). Here, there 

is no dispute that Ms. Lal fits within the statutory definition of “employee,” and is entitled to appeal rights unless 

otherwise excepted by statute. For the reasons set forth 

below, we agree with Ms. Lal that § 209(f) does not provide such an exception.

We begin, as we must, with the plain language of 

§ 209(f), which provides:
4 LAL v. MSPB

In accordance with regulations, special consultants may be employed to assist and advise in the 

operations of the [Public Health] Service. Such 

consultants may be appointed without regard to 

the civil-service laws.

The plain language of the statute only speaks in terms of 

appointment authority, and does not discuss the removal 

of the employee. Because the statute does not include an 

explicit reference to removal ability, we must determine if

the Civil Service Due Process Amendments of 1990 extended appeal rights to employees appointed under 

§ 209(f). If so, the Board has jurisdiction over Ms. Lal’s 

appeal. 

“It is a ‘fundamental canon of statutory construction

that the words of a statute must be read in their context 

and with a view to their place in the overall statutory 

scheme.’” Food and Drug Admin. v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. 

Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). “A 

court must therefore interpret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, 

all parts into an harmonious whole.’” Id. (internal citations omitted). 

Section 209(f) was enacted as part of the Public 

Health Service Act of 1944, which codified existing rules 

and regulations surrounding the operation of the Public 

Health Service, including the Public Health Commissioned Corps. See, e.g., H.R. Rep. No. 78–1364, at 1–4 

(1944). As explained by the Surgeon General at the time, 

the Act provided for “a closely knit, highly trained commissioned corps of officers, who are specialists in public 

health, medicine, scientific research, and related specialists, as the best type of administrative structure to deal 

with national and international health problems.” Alanson Wilcox, Public Health Service Act, 1944, 7 Soc. Sec. 

Bull., Aug. 1944, at 15 (quoting Surgeon General Thomas 
LAL v. MSPB 5

Parran). To that end, what is now the Secretary of 

Health and Human Services was given authority to 

appoint “any officer or employee of the Service . . . in 

accordance with the civil-service laws.” 42 U.S.C. § 209(i). 

But, “[w]hen the Public Health Service requires the 

services of consultants who cannot be obtained when 

needed through regular Civil Service appointment . . . , 

special consultants to assist and advise the operations of 

the Service may be appointed,” 42 C.F.R. § 22.3(a), pursuant to § 209(f), “without regard to the civil-service laws.” 

To put it more simply, § 209(f) permits the Secretary to 

hire consultants into the excepted service. 

As the civil-service laws matured, section 209(f) remained substantively unchanged. The Civil Service 

Reform Act of 1978 (CSRA) “comprehensively overhauled 

the civil service system,” creating “a new framework for 

evaluating adverse personnel actions against ‘employees’” 

within the newly formed Merit Systems Protection Board. 

Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 774 (1985). 

The CSRA “prescribes in great detail the protections and 

remedies applicable to” actions taken against certain 

federal employees, “including the availability of administrative and judicial review.” United States v. Fausto, 484 

U.S. 439, 443 (1988). As is relevant here, the CSRA 

extended certain benefits, including the right to administrative review by the Board and appeal rights to this 

court, to individuals in the competitive service and “certain veterans and their close relatives—so-called ‘preference eligibles,’” in the excepted service. Id. at 441 n.1. 

But the CSRA did not extend these benefits to nonpreference eligible members of the excepted service.

Recognizing a gap in administrative and judicial appeal rights for non-preference eligible members of the 

excepted service, Congress enacted the Civil Service Due 

Process Amendments of 1990 (the Due Process Amendments), Pub.L. No. 101-376, 104 Stat. 461 (Aug. 17, 1990)

(codified in relevant part at 5 U.S.C. § 7511)). See Ben-
6 LAL v. MSPB

nett, 635 F.3d at 1220 (recognizing that Congress enacted 

the Due Process Amendments in response to the Supreme 

Court’s decision in Fausto, where the Court held that the

CSRA precluded judicial review for non-preference eligible members of the excepted service); see also H.R. Rep 

No. 101-328, at 1 (1989), reprinted in 1990 U.S.C.C.A.C. 

695 (“The key difference between the protections available 

to competitive service employees and preference eligibles 

in the excepted service, on the one hand, and excepted 

service employees who are not preference eligibles, on the 

other, is the right to appeal an adverse action to the Merit 

Systems Protection Board for independent review.”). The 

Due Process Amendments broadened the CSRA’s definition of covered employees to include non-preference

eligible individuals in the excepted service “who [are] not 

serving a probationary or trial period under an initial 

appointment pending conversion to the competitive service,” or “who [have] 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). 

The Due Process Amendments also include a list of 

categories of individuals who are excluded from title 5 

protection, although they would ordinarily fall within the

broad definition of “employee” set forth in § 7511(a)(1). 

See 5 U.S.C. § 7511(b)(1)–(10). In addition to excluding 

political appointees and confidential or policy making 

positions, the Due Process Amendments also list seven 

additional categories of individuals that are excluded from 

§ 7511’s reach. Many of these categories were either 

expressly excluded by existing statute or regulation, or 

already subject to an appeal regime within a particular 

agency. For example, § 7511(b) excludes employees of the 

Central Intelligence Agency, the General Accounting 

Office, and the Veterans Health Services—all of whom 

were already excluded from the Board’s appeals process. 
LAL v. MSPB 7

See H.R. Rep. No. 101-328, at 5, 6–7 (1989) (“The National 

Security Act of 1946 provides the Director of the Central 

Intelligence Agency (CIA) with plenary authority to deal 

with personnel of the CIA. The General Accounting Office 

Personnel Act of 1980 provides comparable procedural 

rights for GAO employees through the GAO personnel 

Appeals Board. The employees at the Veterans Health 

Services and Research Administration are subject to a 

special peer review system.”). 

With that context in mind, we find that § 209(f) merely ensures that the Secretary has the authority to hire 

individuals into the excepted service. And, after the Due 

Process Amendments, non-preference eligible members of 

the excepted service who, like Ms. Lal, have “completed 2 

years of continuous service in the same or similar positions,” 5 U.S.C. § 7511(a)(1)(C), and who do not fall within 

one of the enumerated excluded categories of individuals 

in § 7511(b), are “employees” ordinarily entitled to appeal 

rights at the Board. This conclusion is consistent with 

our precedent in Todd v. Merit Systems Protection Board, 

55 F.3d 1574 (Fed. Cir. 1995), and its progeny. That 

precedent stands for the proposition that, absent a specific exclusion of appeal rights or exemption from § 7511’s 

definition of employee, a statute exempting an appointment from the civil-service laws cannot escape the broad 

reach of Due Process Amendments and therefore does not 

strip the Board of jurisdiction to hear an appeal from an 

adverse action. 

In Todd, we analyzed 20 U.S.C. § 241(a), which permitted certain “local installations to employ personnel 

whose ‘compensation, tenure, leave, hours of work, and 

other incidents of the employment relationship may be 

fixed without regard to the Civil Service Act and rules 

and the following: . . . (4) sections . . . 7511, 7512, and 

7701 of Title 5.’” 55 F.3d at 1578 (quoting § 241(a)). We 

found that this statutory language was sufficient to 

exempt the petitioner from appeal rights and we rejected 
8 LAL v. MSPB

the argument that the Due Process Amendments impliedly repealed § 241(a). See id. It was of no consequence 

that the Due Process Amendments expanded the definition of “employee” under § 7511 because 20 U.S.C.

§ 241(a) explicitly exempted hired personnel from the 

definition of “employee” in § 7511. See Todd, 55 F.3d at 

1577–78 (rejecting the argument that “the general provisions of section 7511(a)(1)(C) trump specific exceptions of 

section 241(a)”). Indeed, given that § 241(a) excluded 

preference-eligible members before the enactment of the 

Due Process Amendments, see Pub. Law. 89-77, 79 Stat. 

243 (July 21, 1965) (explaining that the Veterans Preference Act of 1944 does not apply), and the Due Process 

Amendments were intended to give the same benefits to 

non-preference excepted service members as those held by 

preference eligible excepted service members, see supra at 

5–6, it is not surprising that the Due Process Amendments could not be read to give additional appeal rights to 

the petitioner in Todd. 

A key factor in Todd was § 241(a)’s explicit reference 

to the statutory provisions granting appeal rights. See 

King v. Briggs, 83 F.3d 1384, 1388 (Fed. Cir. 1996) (“[A]s 

Todd amply demonstrates, Congress knows how to exempt a civil service position from the protections found in 

chapters 75 and 77 of title 5 if it so desires.”). Thus, we 

found in Todd that “there is no irreconcilability or repugnancy between the general rule at section 7511(a)(1)(C) 

that excepted service employees with two years of continuous service have appeal rights and the specific exception 

to this rule at section 241(a) which permits an agency to 

deny the appeal rights to a narrow category of personnel.” 

Todd, 55 F.3d at 1578. 

In Briggs, we reviewed 29 U.S.C. § 783(a)(1), which 

states that the National Council on Disability (Council) 

“may appoint, without regard to the provisions of Title 5 

governing appointments in the competitive service, or the 

provisions of chapter 51 and subchapter III of chapter 53 
LAL v. MSPB 9

of such title relating to classification and General Schedule pay rates, an Executive Director . . . .” Because “Congress gave the Council the option of disregarding only 

certain parts of title 5,” which did not include removal

protections or the definition of employee in § 7511, we 

held that § 783(a)(1) did not exempt the Executive Director from the broad reach of 5 U.S.C. § 7511(a)(1)(C). 

Briggs, 83 F.3d at 1388. Therefore, personnel hired 

pursuant to § 783(a)(1) are hired into the excepted service 

and fall within the gamut of the Due Process Amendments and § 7511(a)(1)(C). 

More recently, in Bennett, we found that a statute 

that explicitly gives the authority to “appoint[ ] . . . and 

remove[ ] . . . without regard to the provisions of title 5 

governing appointments in the competitive service” was 

sufficient to exempt the position from the reach of the Due

Process Amendments. 635 F.3d at 1219–20. 

Here, unlike the statutes at issue in Bennett and 

Todd, 42 U.S.C. § 209(f) merely states “appoint without 

regard to the civil-service laws” and does not include an 

explicit reference to removal or § 7511. As a result, we 

decline to find an additional implicit exemption to 

§ 7511(a)’s definition of “employee” for special consultants 

like Ms. Lal. 

Moreover, we find no conflict between § 209(f)’s authority to hire employees into the excepted service and the 

Due Process Amendments’ extension of appeal rights to 

non-preference eligible members of the excepted service. 

Cf. Todd, 55 F.3d at 1577–78 (finding “no irreconcilability 

or repugnancy between the general rule at section 

7511(a)(1)(C) that excepted service employees with two 

years of continuous service have appeal rights and the 

specific exception to this rule at section 241(a) which 

permits an agency to deny the appeal rights to a narrow 

category of personnel”). Rather, § 7511(a)(1)(C) operates 

in this situation as it was intended: it extends adminis-
10 LAL v. MSPB

trative and judicial appeal rights to non-preference eligible members of the excepted service. To the extent the 

OPM’s implementing regulation at 5 C.F.R. 

§ 752.401(d)(12) calls for a result contrary to the plain 

meaning of 5 U.S.C. § 7511 and 42 U.S.C. § 209(f), “it has 

no force or effect in this case,” Briggs, 83 F.3d at 1388.

In sum, we find that Ms. Lal was hired into the excepted service pursuant to § 209(f) and, because § 209(f)

does not explicitly exempt personnel from the definition of 

“employee” in § 7511 or include specific reference to 

removal authority, the Due Process Amendments extended jurisdiction over Ms. Lal’s claims. Accordingly, we 

reverse the Board’s dismissal for lack of jurisdiction and 

remand for further proceedings.

REVERSED AND REMANDED