NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

PHYLLIS ARCHER, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2012-3032 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. DC0752110337-I-1. 

___________________________ 

Decided: August 3, 2012 

___________________________ 

PHYLLIS ARCHER, of Washington, DC, pro se. 

MICHAEL A. CARNEY, General Attorney, Office of the 

General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. With him on the brief were 

JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 

__________________________ 
ARCHER v. MSPB 2

Before NEWMAN, CLEVENGER, and WALLACH, Circuit 

Judges. 

NEWMAN, Circuit Judge. 

Ms. Phyllis Archer petitions for review of the decision 

of the Merit Systems Protection Board, dismissing her 

appeal for lack of jurisdiction. Because Ms. Archer’s 

position is statutorily excluded from MSPB jurisdiction, 

we affirm. 

BACKGROUND

On September 27, 2003 Ms. Archer was appointed to a 

temporary position with the Federal Emergency Management Agency (FEMA), pursuant to the Disaster Relief 

and Emergency Assistance Act (the Stafford Act), 42 

U.S.C. § 5121 et seq. By its terms, this appointment was 

not to extend after January 25, 2004. Ms. Archer signed a 

hire letter, which stated the understanding that her 

employment was intermittent and temporary, and that 

she could be terminated at any time, without reason or 

cause. 

From January 24, 2004 through February 4, 2007 Ms. 

Archer occupied a series of temporary Stafford Act positions. On February 4, 2007 she was appointed to a Service Program Analyst position in the Logistics Directorate 

for a term not to exceed 2 years, under the provisions of 

the Stafford Act. On July 11, 2008, she was given notice 

of termination, effective August 15, 2008, on the charge 

that she failed to make timely payments on a government-issued charge card. 

The record contains an SF-50 form for Ms. Archer 

which states her resignation as of August 15, 2008. Ms. 

Archer does not deny having resigned, but states that her 

intent was to resign from the FEMA Logistics Directorate 

only, because she believed that she would be assigned to a 
3 ARCHER v. MSPB

permanent full-time position in a different Directorate. 

She states that she did not learn of this SF-50 record until 

June 2010. 

Ms. Archer appealed her termination to the MSPB on 

January 27, 2011. The Administrative Judge (AJ) dismissed the appeal, stating that Stafford Act employees do 

not have the right of appeal to the Board, citing 5 C.F.R. 

§ 752.401(d)(12) (“This subpart does not apply to... [a]n 

employee whose agency or position has been excluded 

from the appointing provisions of title 5, United States 

Code, by separate statutory authority in the absence of 

any provision to place the employee within the coverage of 

chapter 75 of title 5, United States Code.”). 

The AJ recognized that the resignation was involuntary, and responded to Ms. Archer’s discrimination claim, 

stating that when the Board lacks jurisdiction over the 

underlying termination, it does not have jurisdiction to 

consider a discrimination claim. 

Ms. Archer appeals, arguing that the MSPB did not 

take into account facts regarding her termination, that it 

failed to consider important grounds for relief, and that it 

applied the wrong law in denying its jurisdiction. 

DISCUSSION

Whether the Board correctly determined its jurisdiction is a question of law, and receives plenary review. Roy 

v. Merit Sys. Prot. Bd., 672 F.3d 1378, 1380 (Fed. Cir. 

2012). 

The Stafford Act is directed to FEMA “special measures” in the face of disaster. 42 U.S.C. § 5149(b)(1) authorizes the FEMA “to appoint and fix the compensation 

of such temporary personnel as may be necessary, without 

regard to the provisions of title 5, United States Code, 

governing appointments in competitive service.” Al-
ARCHER v. MSPB 4

though it has been proposed to bring FEMA employees 

within title 5, this has not been done, presumably in 

recognition of the unpredictable demands of disasters. 

Ms. Archer states that she did not resign from the 

agency, but only from one directorate, in order to take a 

full-time position in another directorate. The record 

contains no evidence of such arrangement. The Board 

correctly held that it by statute it has no jurisdiction to 

receive this appeal. Absent jurisdiction of the personnel 

action, the Board has no authority to consider her discrimination claim. Schmittling v. Department of the 

Army, 219 F.3d 1332, 1337 (2000). The case was correctly 

dismissed. 

No costs. 

AFFIRMED