Phyllis Archer v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.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 A RCHER , of Washington, DC, pro se.
M ICHAEL A. CARNEY , General Attorney, Office of the
General Counsel, Merit Systems Protection Board, Wash-
ington, DC, for respondent. With him on the brief were
JAMES M. EISENMANN , General Counsel, and KEISHA
D AWN BELL, Deputy General Counsel.
__________________________

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ARCHER v. MSPB 2
Before NEWMAN , C LEVENGER , 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 Man-
agement 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 posi-
tions. On February 4, 2007 she was appointed to a Ser-
vice 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 govern-
ment-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

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ARCHER v. MSPB 3
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) dis-
missed 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 involun-
tary, 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.
D ISCUSSION
Whether the Board correctly determined its jurisdic-
tion 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 meas-
ures” in the face of disaster. 42 U.S.C. § 5149(b)(1) au-
thorizes 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-

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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 dis-
crimination claim. Schmittling v. Department of the
Army, 219 F.3d 1332, 1337 (2000). The case was correctly
dismissed.
No costs.
AFFIRMED

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