UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2017 MSPB 1

Docket No. SF-0752-15-0165-M-1

Harris L. Winns,

Appellant,

v.

United States Postal Service,

Agency.

January 4, 2017

Harris L. Winns, San Jose, California, pro se.

Nina Paul, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 This appeal is before the Board after the U.S. Court of Appeals for the 

Federal Circuit granted the Board’s request to remand the case to the Board for 

further consideration. Except as expressly MODIFIED by this Opinion and Order 

to supplement the administrative judge’s jurisdictional analysis, we AFFIRM the 

initial decision, issued in MSPB Docket No. SF-0752-15-0165-I-1, dismissing the 

appeal for lack of jurisdiction. 

BACKGROUND

¶2 The agency employed the preference‐eligible appellant in a series of four 

temporary, time-limited appointments, beginning on December 3, 2011. Winns v. 
2

U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Initial Appeal File 

(IAF), Tab 8 at 5, Tab 10 at 1, Tab 14 at 22-28. Each appointment was for less 

than a year, and they were separated by a break in service of at least several days. 

IAF, Tab 14 at 22-28. Most recently, on February 6, 2014, following a 5-day 

break in service, the agency appointed the appellant to a temporary Postal 

Support Employee position. Id. at 22-23. Approximately 9 months later, before 

that appointment expired, the agency terminated the appellant’s employment for 

alleged misconduct.1 Id. at 40, 51. 

¶3 The appellant filed a Board appeal challenging his termination, and 

alleged, among other things, that he was terminated in retaliation for 

whistleblowing. IAF, Tab 1, Tab 12 at 24-26. He did not request a hearing. 

IAF, Tab 1 at 2. Based on the written record, the administrative judge dismissed 

the appeal for lack of jurisdiction. IAF, Tab 23, Initial Decision (ID). He found 

that the Board lacks jurisdiction over the appeal because the appellant failed to 

raise a nonfrivolous allegation that he had completed 1 year of current continuous 

service at the time that he was terminated. ID at 3-4. He further found that the

Board lacks jurisdiction over the appellant’s claims of whistleblower retaliation

because U.S. Postal Service employees are not entitled to seek corrective action 

under 5 U.S.C. § 1221.

2

ID at 4. 

 

1

The agency issued the appellant two separate termination notices based on different 

alleged misconduct. IAF, Tab 14 at 40-43, 51-54. In the first notice, the agency stated 

that the appellant would be separated effective November 7, 2014. Id. at 51. In the 

second notice, the agency stated that he would be separated effective November 30, 

2014. Id. at 40. It is not clear precisely when the appellant was separated from the 

agency, but there is no suggestion that it was not in or around November 2014. 

2

The administrative judge also found that, absent an otherwise appealable action, the 

Board lacks jurisdiction over the appellant’s claims of discrimination and retaliation for 

prior equal employment opportunity and union activities. ID at 4-5; see IAF, Tab 1

at 4-9, Tab 5 at 7-8, 14-20. 
3

¶4 The appellant filed a petition for review of the initial decision. Winns v. 

U.S. Postal Service, MSPB Docket No. SF-0752-15-0165-I-1, Petition for Review 

(PFR) File, Tab 1. In pertinent part, for the first time on review, the appellant

argued that, although he held the appointment from which he was terminated for 

less than a year, and had been appointed to the position following a break in 

service, he nevertheless had Board appeal rights under the “continuing 

employment contract” theory set forth in Roden v. Tennessee Valley Authority, 

25 M.S.P.R. 363, 367-68 (1984). PFR File, Tab 1 at 13-14. In a May 7, 2015

Final Order, the Board denied the appellant’s petition for review, without 

addressing his arguments regarding Roden. Winns v. U.S. Postal Service, MSPB 

Docket No. SF-0752-15-0165-I-1, Final Order (May 7, 2015) (Final Order); PFR 

File, Tab 8. 

¶5 The appellant appealed the Board’s decision to the Federal Circuit. 

Winns v. Merit Systems Protection Board, MSPB Docket No. SF-0752-15-0165-

L-2, Litigation File (LF), Tab 3. The Federal Circuit granted the Board’s request

to remand the appeal to the Board to consider whether Roden was still good law, 

and if so, whether it would alter the Board’s determination that it lacks 

jurisdiction over this appeal. Winns v. Merit Systems Protection Board, 

No. 2016-1206, slip op. (Fed. Cir. Apr. 25, 2016); LF, Tab 8 at 1-5, Tab 11. 

¶6 On remand, the Board issued an order directing the parties to address 

whether Roden should be overruled in light of 5 C.F.R. § 752.402, a regulation 

promulgated by the Office of Personnel Management (OPM) after Roden was 

issued, which defines the term “current continuous employment.” Winns v. U.S. 

Postal Service, MSPB Docket No. SF-0752-15-0165-M-1, Remand File (RF),

Tab 2. Both parties responded to the show cause order. RF File, Tabs 5-6. 

ANALYSIS

¶7 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 
4

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden 

of proving by preponderant evidence that his appeal is within the Board’s 

jurisdiction.

3

 5 C.F.R. § 1201.56(b)(2)(i)(A). 

¶8 Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an 

adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Mathis v. U.S. 

Postal Service, 865 F.2d 232 (Fed. Cir. 1988). Pursuant to 5 U.S.C. 

§ 7511(a)(1)(B), which concerns preference-eligible employees in the excepted 

service, an employee with the right to appeal to the Board includes a 

preference-eligible U.S. Postal Service employee who has completed “1 year of 

current, continuous service” in the same or similar positions. 4 5 U.S.C. 

§ 7511(a)(1)(B)(ii); see 5 U.S.C. §§ 7511(b)(8); Mathis, 865 F.2d at 232-33. We

agree with the administrative judge that the dispositive issue in the instant appeal 

is whether the appellant completed 1 year of “current continuous service” at the 

time of his termination.5 ID at 3-4. 

¶9 Title 5 does not define “current continuous service.” In Roden, the Board 

found that a preference-eligible employee who held a series of five temporary 

appointments to the same position, separated by short breaks in service, 

 

3 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 

4

Employees of the U.S. Postal Service also may appeal adverse actions to the Board 

under 5 U.S.C. chapter 75 if they are management or supervisory employees, or 

employees engaged in personnel work in other than a purely nonconfidential clerical 

capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Toomey v. U.S. 

Postal Service, 71 M.S.P.R. 10, 12 (1996). The appellant has not alleged, and the 

record does not reflect, that he was employed in any of these capacities. IAF, Tab 14

at 22-28. 

5

The administrative judge did not make findings regarding whether the appellant’s 

positions with the agency were the same or similar, and we find it unnecessary to do so 

here, having found that the Board lacks jurisdiction over the appeal on the ground that 

the appellant did not have 1 year of current continuous service at the time of 

his termination. 
5

established jurisdiction over his termination appeal, even though he held the 

appointment from which he was terminated for less than a year. Roden, 

25 M.S.P.R. at 364, 367-68. The Board found that, even assuming that

section 7511(a)(1)(B) generally excluded service that was interrupted by a break 

in service of 2 workdays, it was obligated to look beyond the form of statutory 

and other provisions, and to determine the purpose which these provisions were 

intended to serve. Roden, 25 M.S.P.R. at 367. The Board found that, under the 

circumstances at issue, the agency had effectively entered into a continuing 

employment contract with the employee, and therefore, despite several breaks, his

service was “continuous” within the meaning of section 7511(a)(1)(B). Roden,

25 M.S.P.R. at 368. Having resolved the appeal on other grounds, the Board

declined to address whether guidance in versions of OPM’s Federal Personnel 

Manual (FPM) in effect at the time interpreted the “current continuous service”

requirement in section 7511(a)(1)(B) as precluding breaks in service of a 

workday.

6

 Roden, 25 M.S.P.R. at 365 n.3, 367. 

¶10 Approximately 3 and a half years after the Board issued Roden, OPM 

promulgated 5 C.F.R. § 752.402, a regulation that defines “current continuous 

employment.” See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,620 (June 9,

1988); see also Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322 

(Fed. Cir. 2012). Although 5 C.F.R. § 752.402 refers to “current continuous 

employment,” rather than “current continuous service,” the appellant does not 

 

6

The relevant versions of the FPM contained seemingly conflicting guidance regarding 

this issue. In pertinent part, the 1980 version of the FPM stated, “[c]urrent continuous 

employment in a position outside the competitive service may be either employment in 

one position without a break of a workday or employment in more than one position in 

the same line of work without a break of a workday.” Roden, 25 M.S.P.R. at 365 n.3. 

However, the same section also stated that “employment is credited for this purpose in 

the same manner that it is credited toward completion of a probationary period,” which 

would permit a break in service of up to 30 days. Id. at 365 & n.3. In 1984, the FPM 

was revised to clarify that the 30-day criterion applied to the excepted service, as well 

as the competitive service. Id. at 365. 
6

dispute that the regulation was enacted to implement 5 U.S.C. chapter 75, and 

applies to 5 U.S.C. § 7511(a)(1)(B).7 RF, Tab 6; see also Wilder, 675 F.3d 

at 1322 n.1; Other Than Full-Time Career Employment and Adverse Actions, 

52 Fed. Reg. 9,867-01, 9,867-68 (Mar. 27, 1987). 

¶11 In its current iteration, 5 C.F.R. § 752.402 provides that “[c]urrent 

continuous employment means a period of employment or service immediately 

preceding an adverse action without a break in Federal civilian employment of a 

workday.”

8

The regulation does not provide for an exception to the requirement 

that the service be without a break of a workday in the cases of a “continuing 

employment contract,” or any other circumstances. See 5 C.F.R. § 752.402. 

¶12 In OPM’s published response to comments regarding 5 C.F.R. § 432.103, a

proposed regulation pertaining to performance-based actions under 5 U.S.C. 

chapter 43, OPM made clear that 5 C.F.R. § 752.402 precludes the “continuing 

employment contract” theory set forth in Roden. See Reduction in Grade and 

Removal Based on Unacceptable Performance, 54 Fed. Reg. 26,172-01, 26,174 

(June 21, 1989). A union recommended that OPM revise the proposed definition 

of “current continuous employment” in 5 C.F.R. § 432.103, which was 

substantially similar to the definition in 5 C.F.R. § 752.402, to provide for a 

continuing employment contract theory, consistent with Roden. See Reduction in 

 

7

Prior to the enactment of the 1990 Civil Service Due Process Amendments, Pub. L. 

No. 101-376, 104 Stat. 461, 5 U.S.C. § 7511(a)(1)(A), a provision of section 7511(a)(1) 

not at issue in the instant appeal referred to “current continuous employment,” rather 

than “current continuous service.” See Civil Service Reform Act of 1978, Pub. L. 

No. 95-454, 92 Stat. 1111; Wilder, 675 F.3d at 1322 n.1. 

8 At the time that 5 C.F.R. § 752.402 was promulgated, the regulation defined “current 

continuous employment” as “a period of employment or service immediately preceding 

an adverse action in the same or similar positions without a break in Federal civilian 

employment of a workday.” See Adverse Actions, 53 Fed. Reg. 21,619-01, 21,623 

(June 9, 1988). In a 2008 amendment to 5 C.F.R. § 752.402, OPM deleted the reference 

to “the same or similar positions.” See Career and Career-Conditional Employment and 

Adverse Actions, 73 Fed. Reg. 7,187-01, 7,188 (Feb. 7, 2008). 
7

Grade and Removal Based on Unacceptable Performance, 54 Fed. Reg. 

26,172-01, 26,174 (June 21, 1989). OPM declined to do so, explaining that its

FPM guidance in effect at the time that Roden was issued: 

was superseded by [5 C.F.R. § 752.402[] which became effective on 

July 11, 1988. The regulation makes clear that OPM’s policy 

governing the computation of current continuous employment allows 

for no break in Federal civilian employment. Since the definition 

suggested by the union for Part 432 is not consistent with established 

policy, OPM has not adopted the suggestion.9 

Id. Thus, under 5 C.F.R. § 752.402, neither the employee’s service in Roden, nor 

the appellant’s service at issue in the instant appeal, qualify as “current 

continuous service.” 

¶13 Congress has expressly authorized OPM to prescribe regulations 

implementing 5 U.S.C. chapter 75. 5 U.S.C. § 7514; Wilder, 675 F.3d at 1322. 

For this reason, and because OPM promulgated 5 C.F.R § 752.402 following 

notice and comment procedures, we review OPM’s interpretation of

section 7511(a)(1)(B) under the 2‐step analytical framework articulated in 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 

842-43 (1984). See Wilder, 675 F.3d at 1322; Jonson v. Federal Deposit 

Insurance Corporation, 122 M.S.P.R. 454, ¶ 15 (2015); Preyor v. U.S. Postal 

Service, 83 M.S.P.R. 571, ¶ 11 (1999). First, we must determine “whether 

Congress has directly spoken to the precise question at issue ”; if so, we “must 

give effect to the unambiguously expressed intent of Congress.” Chevron, 

467 U.S. at 842-43. If the statute is silent or ambiguous concerning the question 

at issue, the inquiry proceeds to an analysis of whether the agency’s 

 

9 OPM also erroneously stated that the Board decision in Roden “was based, in large 

part” on the guidance in the FPM. Id. In fact, as discussed previously, in Roden, the 

Board declined to address whether to afford deference to the FPM guidance. 

25 M.S.P.R. at 365 & n.3, 367. However, this error is of no consequence because the 

pertinent inquiry is OPM’s interpretation of section 7511(a)(1)(B), the relevant statute, 

not OPM’s interpretation of the Board’s rationale for its decision in Roden.
8

interpretation is based on a permissible construction of the statute. Id. at 843. If 

so, the Board must defer to the agency’s interpretation. Id.; Day v. Department of 

Homeland Security, 119 M.S.P.R. 589, ¶ 26 (2013). 

¶14 The fact that title 5 does not define “current continuous service,” standing 

alone, does not necessarily render the statute silent or ambiguous. See Gardner v. 

Brown, 5 F.3d 1456, 1459 (Fed. Cir. 1993) (finding that “Congress is not required 

to define each and every word in a piece of legislation in order to express clearly 

its will”), aff’d, 513 U.S. 115 (1994). The Board may refer to dictionary 

definitions to determine the ordinary meaning of an undefined statutory term. 

See Information Technology & Applications Corporation v. United States, 

316 F.3d 1312, 1320 (Fed. Cir. 2003). The Merriam Webster Collegiate 

Dictionary defines “continuous” as “marked by uninterrupted extension in space, 

time, or sequence.” Merriam Webster Collegiate Dictionary 250 (10th ed. 2002). 

Similarly, Webster’s II New Riverside University Dictionary defines 

“continuous” as “uninterrupted” or “unbroken.” Webster’s II New Riverside 

University Dictionary 305 (1984). Thus, the ordinary meaning of “current 

continuous service” appears to preclude breaks in service. 

¶15 Moreover, the legislative history of the Civil Service Reform Act of 1978 

(CSRA), which enacted 5 U.S.C. chapter 75, does not preclude the Board from 

interpreting the phrase “current continuous service” in section 7511(a)(1)(B) 

according to its plain meaning. See S. Rep. No. 95-969 (1978), reprinted in 1978 

U.S.C.C.A.N. 2723; H.R. Conf. Rep. 95-1717 (1978), reprinted in 1978 

U.S.C.C.A.N. 2860; see also Pirkkala v. Department of Justice, 123 M.S.P.R. 

288, ¶ 7 (2016) (finding that, when statutory language is clear, it must control 

absent clearly expressed legislative intent to the contrary). Instead, the Senate 

Committee Report states that “[t]he phrase ‘one year of current continuous 

service . . . ,’ which defines the extent of coverage of employees in the excepted 

service, is intended to be the same as that currently used in civil service 

regulations.” S. Rep. No. 95-969, reprinted in 1978 U.S.C.C.A.N. 2723, 2770. 
9

At the time that the CSRA was enacted, although the civil service regulations 

themselves did not define “current continuous service,” the meaning of that 

phrase, as used in those regulations, was set forth in the 1978 version of the FPM, 

which provided: 

Current continuous employment in a position outside the competitive 

service may be either (i) employment in one position without a break 

of a workday or (ii) employment in more than one position in the 

same line of work without a break of a workday. 

Mathis, 865 F.2d at 234; Weinberger v. U.S. Postal Service, 4 M.S.P.R. 330, 332 

(1980). Thus, interpreting the “current continuous service” requirement in

section 7511(a)(1)(B) in accordance with the plain meaning of the term 

“continuous” appears consistent with the intent of Congress. 

¶16 Even if we were to find that Congress had not expressed its intent on this 

matter, however, or that its purpose and intent is unclear, we would find that 

OPM’s interpretation in 5 C.F.R. § 752.402 is based on a permissible 

construction of the statute and afford Chevron deference to it.10 As the agency 

charged with promulgating regulations to implement 5 U.S.C. chapter 75, OPM’s 

interpretation of a statutory term governs if it is a reasonable interpretation of the 

statute—not necessarily the only possible interpretation, nor even the 

interpretation deemed most reasonable by the Board. See Entergy Corporation v. 

Riverkeeper, Inc., 556 U.S. 208, 218 (2009); Day, 119 M.S.P.R. 589, ¶ 26. Here, 

because OPM’s definition of “current continuous service” is in accordance with 

the plain meaning of “continuous” and the legislative history of the CSRA, we 

find that it is both reasonable and consistent with the statute.11 

 

10 In contrast, OPM’s FPM guidance in effect during the time period at issue in Roden

was not subject to notice and comment rulemaking, and would not be afforded Chevron

deference. See Knapp v. Department of Commerce, 24 M.S.P.R. 605, 609 n.2 (1984). 

11 We have considered the appellant’s argument that the definition of current continuous 

employment in 5 C.F.R. § 752.402 is unreasonable because it differs from the 30-day 

break in service permitted for purposes of tacking on prior service to complete a 
10

¶17 In addition, Roden was incorrectly decided to the extent that it found that 

an appellant can establish Board jurisdiction based on a “continuing employment 

contract” theory, regardless of whether he falls within the definition of an 

employee with Board appeal rights under the applicable statute. See Roden, 

25 M.S.P.R. at 367-68. “The Board’s jurisdiction is strictly limited to that 

provided by statute, rule, or regulation,” and with respect to adverse action 

appeals under 5 U.S.C. chapter 75, “that jurisdiction only encompasses appeals 

by ‘employees’ as defined in section 7511(a)(1).” Hartman v. Merit Systems 

Protection Board, 77 F.3d 1378, 1380 (Fed. Cir. 1996). The parties cannot 

confer jurisdiction by a contract or agreement where none otherwise exists. See

Metzenbaum v. General Services Administration, 96 M.S.P.R. 104, ¶ 9 (2004). 

¶18 For the reasons set forth above, we overrule the Board’s decision in Roden. 

Further, we overrule subsequent decisions relying on Roden to find that an 

appellant may establish “current continuous service” for purposes of

section 7511(a)(1)(B) under a “continuing employment contract” theory, despite a 

break in service of a workday, including: Melvin v. U.S. Postal Service, 

79 M.S.P.R. 372, ¶¶ 5-6 (1998); Bradley v. U.S. Postal Service, 69 M.S.P.R. 595, 

597-99 (1996); and Hayes v. U.S. Postal Service, 36 M.S.P.R. 622, 625 (1988).

12

 

¶19 Finally, we discern no basis to disturb our findings in the prior final order 

that: (1) the Board otherwise lacks jurisdiction over the appeal under 5 U.S.C. 

chapter 75; (2) the Board lacks jurisdiction over the appellant’s whistleblower 

 

probationary or trial period. RF, Tab 6 at 10. We find this argument unpersuasive. 

The Board has held that the 30-day rule applicable to tacking service to determine 

whether an individual has completed a trial or probationary period does not apply when 

determining whether prior service may be counted toward the applicable current 

continuous service requirement under 5 U.S.C. § 7511(a)(1). Maibaum v. Department 

of Veterans Affairs, 116 M.S.P.R. 234, ¶ 14 (2011). 

12 In both Bradley, 69 M.S.P.R. at 597-99, and Hayes, 36 M.S.P.R. at 625, the Board 

agreed with the rule set forth in Roden, but found that it did not apply under the 

particular facts of the case. 
11

reprisal claims; and (3) absent an otherwise appealable action, the Board lacks 

jurisdiction over the appellant’s other claims of retaliation and discrimination. 

Final Order at ¶¶ 5-6; PFR File, Tab 8 at 4-5. Accordingly, we adopt these 

findings herein. For the reasons set forth above, we affirm the initial decision, as 

modified, to supplement the administrative judge’s jurisdictional analysis, and to 

find that Roden and subsequent decisions relying on the “continuing employment 

contract” theory articulated in Roden are no longer good law. 

ORDER

¶20 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 
12

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.