UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 14

Docket No. NY-0752-15-0064-I-1

Jane Carol Malloy,

Appellant,

v.

Department of State,

Agency.

May 31, 2022

Jane Carol Malloy, Trenton, New Jersey, pro se.

Marianne Perciaccante, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that 

dismissed her adverse action appeal for lack of jurisdiction. For the reasons set 

forth below, we GRANT the petition for review under 5 C.F.R. § 1201.115(b), 

REVERSE the initial decision, and REMAND the appeal for further adjudication 

consistent with this Opinion and Order. 

BACKGROUND

¶2 On November 4, 1990, the agency appointed the appellant as a 

nonpreference eligible to the excepted-service Technical Information Specialist

position, GG-12, at the United States Mission to the United Nations (USUN). 
2

Initial Appeal File (IAF), Tab 9 at 13. The legal authority for the appointment 

recorded in her Standard Form 50 (SF-50) was United States Code chapter 22, 

section 287 (22 U.S.C. § 287). IAF, Tab 9 at 13. Section 287 of title 22 provides 

for the President to appoint individuals to various positions at the United Nations 

(U.N.). The appellant’s SF-50 remarks section also states: “Appointment without 

regard to civil service and classification laws in accordance with Public Law 341

(Section 8) Amendment to the U.N. Participation Act of 1945.” Id. Section 8 of 

the U.N. Participation Act is codified at 22 U.S.C. § 287e, which states:

There is hereby authorized to be appropriated annually to the 

Department of State, out of any money in the Treasury not otherwise 

appropriated, such sums as may be necessary for the payment by the 

United States of . . . all necessary salaries and expenses of the 

representatives provided for in section 287 of this title, and of their 

appropriate staffs, including personal services in the District of 

Columbia and elsewhere, without regard to the civil-service laws and 

chapter 51 and subchapter III of chapter 53 of Title 5. . . .

22 U.S.C. § 287e.

¶3 In 2014, the agency suspended the appellant for 30 days on charges of 

unprofessional behavior and disruptive behavior. IAF, Tab 14 at 44-58. The 

appellant appealed the 30-day suspension as an adverse action under chapter 75,

arguing that the suspension was in retaliation for filing equal employment 

opportunity complaints concerning alleged discrimination based on race, color, 

and disability. IAF, Tab 1 at 5. The agency filed a motion to dismiss the appeal 

for lack of jurisdiction. IAF, Tab 9. The administrative judge informed the 

appellant in a show cause order that the Board may not have jurisdiction over her 

adverse action appeal. IAF, Tab 24. The appellant responded to the order. IAF, 

Tab 25. 

¶4 Thereafter, the administrative judge issued an initial decision dismissing the 

appeal for lack or jurisdiction. IAF, Tab 29, Initial Decision (ID) at 1, 13. In 

doing so, she relied on a regulation issued by the Office of Personnel 

Management (OPM), 5 C.F.R. § 752.401(d)(12), which states that “[a]n employee 
3

whose agency or position has been excluded from the appointing provisions of 

title 5, United States Code, by separate statutory authority” is excluded from 

coverage of 5 U.S.C. chapter 75 unless there is a provision specifically placing 

those employees under the protections of chapter 75. ID at 3; see 5 C.F.R. 

§ 752.401(d)(12). 1 The administrative judge noted that OPM’s most commonly 

used language to describe a statutory exclusion was “without regard to the 

provisions of title 5, United States Code, governing appointments in the 

competitive service” or “without regard to the civil-service laws.” ID at 3; 

58 Fed. Reg. 13,191, 13,192 (Mar. 10, 1993). Given this language, the 

administrative judge found that 22 U.S.C. § 287e constituted a separate statutory 

authority which exempts USUN employees from the appointment provisions of 

title 5. ID at 9. She also found that the appellant pointed to no statutory 

provisions or any evidence that would specifically place her under the protections 

of chapter 75 despite an initial exclusion. Id. 

¶5 In arriving at this conclusion, the administrative judge also relied on Suzal 

v. Director, U.S. Information Agency, 32 F.3d 574, 578-79 (D.C. Cir. 1994). In 

Suzal, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. 

Circuit) was faced with a similar question of whether an appointment authority, 

22 U.S.C. § 1474(1), excluded an employee appointed under that authority from 

the civil service laws altogether. Suzal, 32 F.3d at 578-79. The court in Suzal

stated that “it would distort the statutory language to hold that people employed 

‘without regard to the civil service . . . laws’ are actually covered by all the civil 

service laws applicable to members of the excepted service.” Id. at 578.

 

1 OPM also has indicated in its comments to 5 C.F.R. § 752.401(d)(12) that, although 

most statutory authorities only reference “appointments,” “all that is required for a 

statutory exclusion from chapter 75 is a legislative exclusion from the appointing 

requirements of title 5, United States Code, in the absence of any provision to place the 

employee within the coverage of chapter 75 of title 5.” 58 Fed. Reg. 13,191, 13,192 

(Mar. 10, 1993). 
4

¶6 The appellant has filed a petition for review arguing that the Board should 

reevaluate the dismissal for lack of jurisdiction and renewing her discrimination 

and retaliation claims. Petition for Review (PFR) File, Tab 1 at 4. The agency 

has filed a response to the appellant’s petition. PFR File, Tab 4.

2

 

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 

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

to prove by preponderant evidence that her appeal is within the Board’s 

jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). A preponderance of the evidence is 

that 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).

¶8 It appears undisputed that the appellant fits within the statutory definition 

of an employee under 5 U.S.C. § 7511(a)(1)(C), and thus is entitled to appeal 

rights under chapter 75 unless otherwise excepted by statute. 3 The crux of this 

case is whether the appellant’s appointing authority, 22 U.S.C. § 287e, excludes 

 

2 After submitting its opposition to the appellant’s petition for review, PFR File, Tab 4, 

the agency filed a motion for leave to file an additional pleading to alert the Board to a 

decision by the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 6. The 

agency, “in an abundance of caution,” sought to draw the Board’s attention to Lal v.

Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016), noting that the case 

addressed a similar issue to the one currently before the Board and was issued after the 

parties briefed the jurisdictional issue below. Id. at 5. The agency’s motion did not ask 

the Board to do anything more than to consider Lal, which the Board has done. 

Accordingly, we DENY the motion for leave to file an additional pleading as moot. 

3 The record shows that the appellant was not serving a probationary or trial period 

under an initial appointment pending conversion to the competitive service, IAF, Tab 1 

at 1, Tab 25 at 11, and that she had completed at least 2 years of current continuous 

service in the same or similar position with the agency as a permanent employee, IAF, 

Tab 9 at 13, Tab 14 at 41, Tab 25 at 11, thereby establishing that she fits the statutory 

definition of “employee” under 5 U.S.C. § 7511(a)(1)(C). 
5

her from the protections of chapter 75. For the reasons set forth below, we find 

that the appellant is not exempt from chapter 75 protections and that the Board 

has jurisdiction over her adverse action appeal. 

Section 287e of title 22 of the U.S. Code does not preclude the appellant’s 

adverse action appeal.

¶9 In 1990, Congress enacted the Civil Service Due Process Amendments of 

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

(codified in relevant part at 5 U.S.C. § 7511), which created administrative and 

judicial appeal rights for nonpreference eligibles in the excepted service, such as 

the appellant, that were not previously available to them under the Civil Service 

Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978), which 

gave limited administrative and judicial review rights to those in the competitive 

service and preference eligibles in the excepted service. Lal v. Merit Systems 

Protection Board, 821 F.3d 1376, 1379-80 (Fed. Cir. 2016). Despite providing 

administrative and judicial appeal rights to nonpreference eligibles in the 

excepted service generally, the Due Process Amendments nevertheless included a 

list of categories of individuals who are excluded from title 5 protection, even 

though they may otherwise fall within the broad definition of “employee” set 

forth in section 7511(a)(1). Lal, 821 F.3d at 1379. Those exclusions include 

political appointees and confidential or policy-making positions, as well as seven 

additional categories listed at 5 U.S.C. § 7511(b)(1)-(10).

¶10 The plain language of the appellant’s SF-50 remarks section only speaks in 

terms of appointment authority and does not discuss any other possible agency 

action. IAF, Tab 9 at 13. Further, the applicable statute fails to reference an 

“appointment” and discusses only the “salaries and expenses” of those 

representatives provided for in section 287. 22 U.S.C. § 287e. Thus, because 

neither the SF-50 remarks section, nor 22 U.S.C. § 287e, include an explicit 

reference to the agency’s ability to take an adverse action against the appellant, 
6

the Board must determine if the Due Process Amendments extend appeal rights to 

employees appointed under section 287e. Lal, 821 F.3d at 1378.

¶11 In Lal, our reviewing court addressed the question of whether, in light of 

the Due Process Amendments, the appointing authority of 42 U.S.C. § 209(f)

excluded the appellant in that case from chapter 75 protections. 821 F.3d at 1380. 

That statute states “[i]n accordance with regulations, special consultants may be 

employed to assist and advise in the operations of the [agency]. Such consultants 

may be appointed without regard to the civil-service laws.” 42 U.S.C. § 209(f). 

After discussing the CSRA and the Due Process Amendments in detail, the U.S. 

Court of Appeals for the Federal Circuit (Federal Circuit) found that, “absent a 

specific exclusion of appeal rights or exemption from section 7511’s definition of 

employee, a statute exempting an appointment from the civil-service laws cannot 

escape the broad reach of [the] Due Process Amendments and therefore does not 

strip the Board of jurisdiction to hear an appeal from an adverse action.” 

821 F.3d at 1380. The court explained that, “[t]o 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.’” Lal, 821 F.3d at 1381 (quoting King v. Briggs, 83 F.3d 

1384, 1388 (Fed. Cir. 1996)).

¶12 Like 42 U.S.C. § 209(f), 22 U.S.C. § 287e contains no language exempting 

appointees from section 7511’s definition of “employee.” 22 U.S.C. § 287e. 

Thus, we must look to whether chapter 75 appeal rights were specifically 

excluded. Lal, 821 F.3d at 1380-81. The statutory language only makes a general 

reference to “civil-service laws,” but it goes on to explicitly exclude “chapter 51 

and subchapter III of chapter 53 of Title 5.” 22 U.S.C. § 287e. There is no 

reference in the statute that explicitly excludes the appellant from the protections 

of chapter 75 appeal rights. Id. As our reviewing court noted, “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.” Briggs, 83 F.3d at 1388. Because Congress 
7

could have excluded appointees from the protections of chapter 75 in enacting 

22 U.S.C. § 287e, as it explicitly chose to do with chapter 51 and subchapter III 

of chapter 53, we find that 22 U.S.C. § 287e does not preclude the appellant from 

exercising her appeal rights pursuant to chapter 75. See Briggs, 83 F.3d at 1388

(finding that an appointment under 29 U.S.C. § 783(a)(1) made “without regard to 

the provisions of Title 5 governing appointments in the competitive service, or 

the provisions . . . of such title relating to classification and General Schedule pay 

rates” did not exempt the appointee from the broad reach of 5 U.S.C. 

§ 7511(a)(1)(C) in light of the Due Process Amendments). Further, to the extent

5 C.F.R. § 752.401(d)(12) calls for a result contrary to the plain meaning of 

5 U.S.C. § 7511 and 22 U.S.C. § 287e, “‘it has no force or effect in this case.’” 

Lal, 821 F.3d at 1381 (quoting Briggs, 83 F.3d at 1388).

¶13 Despite what appears to be a contradictory ruling from the D.C. Circuit, see 

Suzal, 32 F.3d at 578-59, it is well settled that decisions of other circuit courts are 

persuasive, but not controlling authority, and that decisions of the Federal Circuit 

constitute precedent binding on the Board, Fairall v. Veterans Administration, 

33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Therefore, we are 

bound by the Federal Circuit’s ruling in Lal and find that 22 U.S.C. § 287e does 

not foreclose Board jurisdiction over the appellant’s adverse action appeal. 
8

ORDER

¶14 Accordingly, we REVERSE the initial decision and REMAND this appeal

to the New York Field Office for adjudication on the merits consistent with this 

Opinion and Order. 

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.