Chester A. Wilder, Jr. v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
__________________________
CHESTER A. WILDER, JR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3105
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT315H100987-I-1.
___________________________
Decided: April 9, 2012
___________________________
BRANDON O. M OULARD , Melville Johnson, P.C., of At-
lanta, Georgia, argued for petitioner.
K ATHERINE M. SMITH , Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With her on the brief were
JAMES M. EISENMANN , General Counsel, and KEISHA
D AWN BELL, Deputy General Counsel.

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WILDER v. MSPB 2
__________________________
Before BRYSON , D YK , and MOORE, Circuit Judges.
BRYSON , Circuit Judge.
Chester A. Wilder, Jr., served for 26 years in the
United States Army. Following his discharge in 2009, he
began working in a civil service position as a maintenance
management specialist for the Department of the Navy.
At the time he was hired, he was advised that his ap-
pointment was subject to completion of a one-year initial
probationary period beginning on August 31, 2009. Mr.
Wilder had no previous federal civilian service.
On August 3, 2010, prior to the expiration of the one-
year probationary period, the agency notified Mr. Wilder
that he would be terminated from his position effective
August 9, 2010. In the letter advising Mr. Wilder of his
termination, the agency stated that he was being removed
for unacceptable performance.
Mr. Wilder sought to appeal his removal to the Merit
Systems Protection Board. The administrative judge who
was assigned to his case found that Mr. Wilder was in his
first year of federal civilian service and was serving a
probationary term at the time of his removal; based on
those findings, the administrative judge held that Mr.
Wilder had no statutory right of appeal to the Board. The
administrative judge explained that because Mr. Wilder
was a probationary employee, his rights before the Board
were limited to those defined by regulations promulgated
by the Office of Personnel Management (“OPM”). Those
regulations provide that probationary employees who are
terminated for post-appointment reasons can appeal
adverse agency actions to the Board only if the termina-
tion was based on partisan political reasons or was the

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WILDER v. MSPB 3
result of discrimination because of marital status. 5
C.F.R. § 315.806(b). Because Mr. Wilder did not assert
either of those grounds as the reason for his removal, the
administrative judge ruled that the Board lacked jurisdic-
tion over his case and therefore dismissed the appeal.
Mr. Wilder petitioned for review to the full Board. In
his petition, he contended that he was entitled to credit
for a portion of his military service in determining
whether he had completed a year of current continuous
service and therefore qualified as an “employee” within
the meaning of 5 U.S.C. § 7511(a)(1). If he qualified as an
employee for purposes of section 7511, he argued, he was
entitled to the procedural benefits of 5 U.S.C. § 7513,
including the right to Board review of his removal, see id.
§§ 7512, 7513(d). The Board noted that Mr. Wilder had
not raised that issue before the administrative judge, but
it nonetheless addressed, and rejected, his claim that his
military service should count toward completion of the
one-year period of continuous service that he needed to
qualify for Board review.
The Board explained that the statute that defines an
“employee,” for purposes of determining whether an
individual in the competitive service may appeal an
adverse action to the Board, requires that the individual
have completed “1 year of current continuous service
under other than a temporary appointment limited to 1
year or less.” 5 U.S.C. § 7511(a)(1)(A). Citing prior Board
precedent, Bell v. Department of Homeland Security, 95
M.S.P.R. 580 (2004), and OPM regulations, 5 C.F.R.
§§ 315.802(b) and 752.402, the Board held that Mr.
Wilder’s “prior military service cannot be tacked on to his
service with the agency to meet the statutory ‘1 year of
current continuous service’ requirement for the right to
appeal an adverse action to the Board.” Because there

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WILDER v. MSPB 4
was no factual dispute bearing on the issue of jurisdiction,
the Board held that the administrative judge had cor-
rectly decided the appeal on the written record.
I
On appeal to this court, Mr. Wilder continues to press
his argument that he qualifies as an employee within the
meaning of 5 U.S.C. § 7511(a)(1)(A), because he is entitled
to add a portion of his previous military service to his
period of civilian service. For that reason, he contends
that he satisfies the requirement of having “1 year of
current continuous service under other than a temporary
appointment limited to 1 year or less.” As a statutory
employee, he argues, he is entitled to a full right of appeal
to the Board from his removal. Like the Board, we reject
that contention.
Section 7511 defines the term “employee” for purposes
of the provisions that give the Board jurisdiction over
adverse action appeals by federal employees. The statute
does not, however, specifically address the issue pre-
sented in this case. The portion of the statute that ap-
plies to individuals in the competitive service reads as
follows:
(a) For the purpose of this subchapter—
(1) “employee” means—
(A) an individual in the competitive
service—
(i) who is not serving a pro-
bationary or trial period un-
der an initial appointment; or
(ii) who has completed 1 year
of current continuous service
under other than a tempo-

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WILDER v. MSPB 5
rary appointment limited to 1
year or less . . . .
Nowhere in the statute is the phrase “1 year of cur-
rent continuous service” defined. Nor does the legislative
history of the statute provide dispositive guidance as to
whether the phrase “current continuous service” includes
prior military service. See S. Rep. No. 95-969, at 48
(1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2770 (Civil
Service Reform Act of 1978); H.R. Rep. No. 101-328, at 6
(1989), reprinted in 1990 U.S.C.C.A.N. 695, 700 (Civil
Service Due Process Amendments Act of 1990). However,
the OPM regulations that implement and interpret sec-
tion 7511 directly address that issue. In particular, 5
C.F.R. § 752.402 defines the term “current continuous
employment” to mean “a period of employment or service
immediately preceding an adverse action without a break
in Federal civilian employment of a workday.”1 That
regulatory language plainly requires that both the pre-
sent employment and the prior employment be “Federal
civilian employment” in order for the period of employ-
ment to qualify as a period of “current continuous ser-
vice.”
Because Congress authorized OPM to prescribe regu-
lations to carry out the subchapter of the Civil Service
Reform Act that includes section 7511, see 5 U.S.C.
§ 7514, and because OPM promulgated section 752.402
pursuant to notice and comment procedures, this is a
1 Section 7511, like the regulation, previously re-
ferred to “current continuous employment.” The phrase
“current continuous employment” in the statute was
changed in 1990 to “current continuous service,” but the
language of the regulation was left unchanged. There is
no suggestion, however, that the regulatory definition
does not apply to the statutory phrase “current continu-
ous service.”

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WILDER v. MSPB 6
classic case for the application of the principles of Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). See United States v. Mead Corp., 533
U.S. 218, 229-31 (2001); Carrow v. Merit Sys. Prot. Bd.,
564 F.3d 1359, 1365 (Fed. Cir. 2009). The familiar Chev-
ron analysis first requires that we 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.” 467 U.S. at 842-43. If,
however, “the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether
the agency’s answer is based on a permissible construc-
tion of the statute.” Id. at 843. In that setting, the
agency’s interpretation of a statutory term “governs if it is
a reasonable interpretation of the statute—not necessar-
ily the only possible interpretation, nor even the interpre-
tation deemed most reasonable by the courts.” Entergy
Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
With respect to the first part of the Chevron analysis,
we conclude that section 7511 is ambiguous as to whether
“current continuous service” refers only to federal civilian
service or whether it can include prior military service as
well. The statute does not explicitly limit “service” to
federal civilian service, but neither does it define “ser-
vice,” as used in section 7511, to include military service.
With respect to the second part of the Chevron analy-
sis, we conclude that the OPM regulation defining “cur-
rent continuous service” as limited to “Federal civilian
employment” embodies a reasonable interpretation of the
statute. The Civil Service Reform Act is directed, as its
name suggests, to federal civilian service. Military ser-
vice is governed by a wholly different statutory scheme,
principally lodged in title 10 of the United States Code.
Section 2101 of title 5 reinforces that distinction, as it

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WILDER v. MSPB 7
characterizes the “civil service” as all appointive positions
in the three branches of government “except positions in
the uniformed services,” i.e., the armed forces and the
commissioned corps of the Public Health Service and the
National Oceanic and Atmospheric Administration. 5
U.S.C. § 2101(1), (3). When Congress intended for mili-
tary service to have some bearing on the rights of employ-
ees under the Civil Service Reform Act, it made explicit
reference to military service as distinguished from the
civilian service to which the statute is principally di-
rected. See, e.g., 5 U.S.C. §§ 8332-8339 (provisions relat-
ing to eligibility for retirement and computation of
retirement annuities); see also 10 U.S.C. § 10216(a)
(expressly granting civilian employee status to dual
status military technicians). The OPM regulatory defini-
tion of “current continuous service,” which refers to fed-
eral civilian employment and thereby excludes service in
the uniformed services, is thus both reasonable and not
inconsistent with the statute. Accordingly, it is entitled to
deference.
Applying the definitional provision of the regulation,
it is clear that Mr. Wilder does not have one year of
current continuous service. His only federal civilian
service is in the position from which he was removed after
serving only 11 months. He has therefore failed to show
that he is an “employee” who has the statutory right to
appeal his removal action to the Merit Systems Protection
Board. In sum, the Board correctly held that military
service does not qualify as “service” for purposes of the
“current continuous service” requirement of section 7511.
II
Mr. Wilder makes the additional argument that he
was terminated for pre-appointment reasons and that

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WILDER v. MSPB 8
OPM regulations therefore give him the right to appeal
based on procedural objections to his removal. See 5
C.F.R. § 315.805 (providing that when a probationary
employee is removed for reasons based in whole or in part
on conditions arising before his appointment, the agency
must provide certain procedural rights to the employee).
In fact, however, Mr. Wilder did not assert before the
Board that he was removed for reasons based on condi-
tions arising before his appointment. Rather, the
agency’s reasons for removing him were based on his
performance in the position, and Mr. Wilder has not
previously claimed otherwise.
In his brief, Mr. Wilder alludes to the statement he
made in his Board appeal that “I feel that race informed
the decision to terminate me.” But that assertion falls far
short of a claim that he was removed because of condi-
tions arising before his appointment. Moreover, Mr.
Wilder did not argue, either before the administrative
judge or in his petition for review to the Board, that he
was removed for pre-appointment reasons. He may not
raise that argument for the first time in this court. See
Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir.
1998); Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101
(Fed. Cir. 1985); Meglio v. Merit Sys. Prot. Bd., 758 F.2d
1576, 1577 (Fed. Cir. 1984).
To the extent that Mr. Wilder’s allusion to racial ani-
mus in his Board appeal was meant as a claim that his
removal was the product of discrimination based on race,
that claim was not within the Board’s jurisdiction. A
claim of racial discrimination falls within the Board’s
jurisdiction only if the Board otherwise has jurisdiction
over the agency’s adverse action. See Cruz v. Dep’t of the
Navy, 934 F.2d 1240, 1245-46 (Fed. Cir. 1991) (en banc);
see also Collins v. Merit Sys. Prot. Bd., 978 F.2d 675, 678-

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WILDER v. MSPB 9
79 (Fed. Cir. 1992); Granado v. Dep’t of Justice, 721 F.2d
804, 806-07 (Fed. Cir. 1983). In this case, as we have
explained, the Board did not have jurisdiction to review
the agency’s removal action because (1) Mr. Wilder was a
probationary employee with less than one year of current
continuous service, and (2) he did not allege that his
termination was based on reasons arising before his
appointment or that it was the product of discrimination
based on partisan political reasons or marital status. See
5 C.F.R. § 315.806(d) (“An appeal alleging a discrimina-
tory termination may be filed under this subsection only if
such discrimination is raised in addition to one of the
issues stated in paragraph (b) or (c) of this section.”).
Because the Board did not otherwise have jurisdiction
over Mr. Wilder’s removal action, it did not have jurisdic-
tion to address his assertion that his removal was the
product of racial discrimination.
No costs.
AFFIRMED

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