Renu B. Lal v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
RENU B. LAL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Intervenor
______________________
2015-3140
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-0852-I-1.
______________________
Decided: May 11, 2016
______________________
G EORGE CHUZI, Kalijarvi, Chuzi, Newman & Fitch,
P.C., Washington, DC, argued for petitioner. Also repre-
sented by RICHARD R ANDOLPH RENNER.
CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, argued
for respondent. Also represented by BRYAN G. P OLISUK.

-- 1 of 10 --

LAL v. MSPB 2
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for intervenor. Also represented
by BENJAMIN C. M IZER, ROBERT E. K IRSCHMAN, J R.,
REGINALD T. BLADES , and ERIN K. M URDOCK-P ARK.
______________________
Before M OORE, O’MALLEY , and HUGHES , Circuit Judges.
HUGHES , Circuit Judge.
Renu Lal was terminated from her position as a dis-
tinguished consultant at the Centers for Disease Control,
a component of the Department of Health and Human
Services. Ms. Lal appealed her removal to the Merit
Systems Protection Board, which concluded that it lacked
jurisdiction over Ms. Lal’s removal because she had been
appointed pursuant to 42 U.S.C. § 209(f), “without regard
to the civil-service laws.” While we agree with the Board
that § 209(f) places Ms. Lal into the excepted service, it
does not exempt her from the Civil Service Due Process
Amendments of 1990, which provide appeal rights to
certain excepted service employees. Accordingly, we
reverse the Board’s decision and remand for further
proceedings.
I
Ms. Lal was appointed as a distinguished consultant
in the excepted service pursuant to § 209(f), which pro-
vides that consultants “may be appointed without regard
to the civil-service laws.” The agency understood this to
mean that Ms. Lal was not subject to the statutory due
process requirements of the civil-service laws under title 5
of the United States Code, and terminated her employ-
ment without providing notice of the termination or a
right to respond, as would ordinarily be required by the
civil-service laws. Ms. Lal appealed to the Board, which
concluded that § 209(f)’s “appointed without regard to the

-- 2 of 10 --

LAL v. MSPB 3
civil-service laws” language deprived the Board of juris-
diction. Ms. Lal appeals.
II
Our review of the Board’s decisions is limited by stat-
ute. Under 5 U.S.C. § 7703(c), we set aside any action,
finding, or conclusion that is: (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
the law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence. The Board’s determination
that it lacked jurisdiction is a question of law that we
review de novo. Bennett v. Merit Sys. Prot. Bd., 635 F.3d
1215, 1218 (Fed. Cir. 2011). “The [Board’s] jurisdiction is
limited to those matters over which it has been given
jurisdiction by law, rule or regulation.” Id. And, “[a]s the
petitioner, [Ms. Lal] bears the burden of proving the
[Board’s] jurisdiction over her appeal by a preponderance
of the evidence.” Id.
Title 5 limits the Board’s jurisdiction over federal
workers’ appeals based on both the nature of the person-
nel action being contested and the employment status of
the individual complainant. 5 U.S.C. §§ 7701(a), 7512,
7513(d). “Taken together, these statutory provisions
make clear that tenured employees—those individuals
who meet the definition of an ‘employee’ set forth in
§ 7511—can seek Board review of adverse actions as
defined in § 7512, including removals.” Archuleta v.
Hopper, 786 F.3d 1340, 1348 (Fed. Cir. 2015). Here, there
is no dispute that Ms. Lal fits within the statutory defini-
tion of “employee,” and is entitled to appeal rights unless
otherwise excepted by statute. For the reasons set forth
below, we agree with Ms. Lal that § 209(f) does not pro-
vide such an exception.
We begin, as we must, with the plain language of
§ 209(f), which provides:

-- 3 of 10 --

LAL v. MSPB 4
In accordance with regulations, special consult-
ants may be employed to assist and advise in the
operations of the [Public Health] Service. Such
consultants may be appointed without regard to
the civil-service laws.
The plain language of the statute only speaks in terms of
appointment authority, and does not discuss the removal
of the employee. Because the statute does not include an
explicit reference to removal ability, we must determine if
the Civil Service Due Process Amendments of 1990 ex-
tended appeal rights to employees appointed under
§ 209(f). If so, the Board has jurisdiction over Ms. Lal’s
appeal.
“It is a ‘fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.’” Food and Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v.
Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). “A
court must therefore interpret the statute ‘as a symmet-
rical and coherent regulatory scheme,’ and ‘fit, if possible,
all parts into an harmonious whole.’” Id. (internal cita-
tions omitted).
Section 209(f) was enacted as part of the Public
Health Service Act of 1944, which codified existing rules
and regulations surrounding the operation of the Public
Health Service, including the Public Health Commis-
sioned Corps. See, e.g., H.R. Rep. No. 78–1364, at 1–4
(1944). As explained by the Surgeon General at the time,
the Act provided for “a closely knit, highly trained com-
missioned corps of officers, who are specialists in public
health, medicine, scientific research, and related special-
ists, as the best type of administrative structure to deal
with national and international health problems.” Alan-
son Wilcox, Public Health Service Act, 1944, 7 Soc. Sec.
Bull., Aug. 1944, at 15 (quoting Surgeon General Thomas

-- 4 of 10 --

LAL v. MSPB 5
Parran). To that end, what is now the Secretary of
Health and Human Services was given authority to
appoint “any officer or employee of the Service . . . in
accordance with the civil-service laws.” 42 U.S.C. § 209(i).
But, “[w]hen the Public Health Service requires the
services of consultants who cannot be obtained when
needed through regular Civil Service appointment . . . ,
special consultants to assist and advise the operations of
the Service may be appointed,” 42 C.F.R. § 22.3(a), pursu-
ant to § 209(f), “without regard to the civil-service laws.”
To put it more simply, § 209(f) permits the Secretary to
hire consultants into the excepted service.
As the civil-service laws matured, section 209(f) re-
mained substantively unchanged. The Civil Service
Reform Act of 1978 (CSRA) “comprehensively overhauled
the civil service system,” creating “a new framework for
evaluating adverse personnel actions against ‘employees’”
within the newly formed Merit Systems Protection Board.
Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 774 (1985).
The CSRA “prescribes in great detail the protections and
remedies applicable to” actions taken against certain
federal employees, “including the availability of adminis-
trative and judicial review.” United States v. Fausto, 484
U.S. 439, 443 (1988). As is relevant here, the CSRA
extended certain benefits, including the right to adminis-
trative review by the Board and appeal rights to this
court, to individuals in the competitive service and “cer-
tain veterans and their close relatives—so-called ‘prefer-
ence eligibles,’” in the excepted service. Id. at 441 n.1.
But the CSRA did not extend these benefits to non-
preference eligible members of the excepted service.
Recognizing a gap in administrative and judicial ap-
peal rights for non-preference eligible members of the
excepted service, Congress enacted the Civil Service Due
Process Amendments of 1990 (the Due Process Amend-
ments), Pub.L. No. 101-376, 104 Stat. 461 (Aug. 17, 1990)
(codified in relevant part at 5 U.S.C. § 7511)). See Ben-

-- 5 of 10 --

LAL v. MSPB 6
nett, 635 F.3d at 1220 (recognizing that Congress enacted
the Due Process Amendments in response to the Supreme
Court’s decision in Fausto, where the Court held that the
CSRA precluded judicial review for non-preference eligi-
ble members of the excepted service); see also H.R. Rep
No. 101-328, at 1 (1989), reprinted in 1990 U.S.C.C.A.C.
695 (“The key difference between the protections available
to competitive service employees and preference eligibles
in the excepted service, on the one hand, and excepted
service employees who are not preference eligibles, on the
other, is the right to appeal an adverse action to the Merit
Systems Protection Board for independent review.”). The
Due Process Amendments broadened the CSRA’s defini-
tion of covered employees to include non-preference
eligible individuals in the excepted service “who [are] not
serving a probationary or trial period under an initial
appointment pending conversion to the competitive ser-
vice,” or “who [have] completed 2 years of current contin-
uous service in the same or similar positions in an
Executive agency under other than a temporary appoint-
ment limited to 2 years or less . . . .” 5 U.S.C.
§ 7511(a)(1)(C).
The Due Process Amendments also include a list of
categories of individuals who are excluded from title 5
protection, although they would ordinarily fall within the
broad definition of “employee” set forth in § 7511(a)(1).
See 5 U.S.C. § 7511(b)(1)–(10). In addition to excluding
political appointees and confidential or policy making
positions, the Due Process Amendments also list seven
additional categories of individuals that are excluded from
§ 7511’s reach. Many of these categories were either
expressly excluded by existing statute or regulation, or
already subject to an appeal regime within a particular
agency. For example, § 7511(b) excludes employees of the
Central Intelligence Agency, the General Accounting
Office, and the Veterans Health Services—all of whom
were already excluded from the Board’s appeals process.

-- 6 of 10 --

LAL v. MSPB 7
See H.R. Rep. No. 101-328, at 5, 6–7 (1989) (“The National
Security Act of 1946 provides the Director of the Central
Intelligence Agency (CIA) with plenary authority to deal
with personnel of the CIA. The General Accounting Office
Personnel Act of 1980 provides comparable procedural
rights for GAO employees through the GAO personnel
Appeals Board. The employees at the Veterans Health
Services and Research Administration are subject to a
special peer review system.”).
With that context in mind, we find that § 209(f) mere-
ly ensures that the Secretary has the authority to hire
individuals into the excepted service. And, after the Due
Process Amendments, non-preference eligible members of
the excepted service who, like Ms. Lal, have “completed 2
years of continuous service in the same or similar posi-
tions,” 5 U.S.C. § 7511(a)(1)(C), and who do not fall within
one of the enumerated excluded categories of individuals
in § 7511(b), are “employees” ordinarily entitled to appeal
rights at the Board. This conclusion is consistent with
our precedent in Todd v. Merit Systems Protection Board,
55 F.3d 1574 (Fed. Cir. 1995), and its progeny. That
precedent stands for the proposition that, absent a specif-
ic exclusion of appeal rights or exemption from § 7511’s
definition of employee, a statute exempting an appoint-
ment from the civil-service laws cannot escape the broad
reach of Due Process Amendments and therefore does not
strip the Board of jurisdiction to hear an appeal from an
adverse action.
In Todd, we analyzed 20 U.S.C. § 241(a), which per-
mitted certain “local installations to employ personnel
whose ‘compensation, tenure, leave, hours of work, and
other incidents of the employment relationship may be
fixed without regard to the Civil Service Act and rules
and the following: . . . (4) sections . . . 7511, 7512, and
7701 of Title 5.’” 55 F.3d at 1578 (quoting § 241(a)). We
found that this statutory language was sufficient to
exempt the petitioner from appeal rights and we rejected

-- 7 of 10 --

LAL v. MSPB 8
the argument that the Due Process Amendments implied-
ly repealed § 241(a). See id. It was of no consequence
that the Due Process Amendments expanded the defini-
tion of “employee” under § 7511 because 20 U.S.C.
§ 241(a) explicitly exempted hired personnel from the
definition of “employee” in § 7511. See Todd, 55 F.3d at
1577–78 (rejecting the argument that “the general provi-
sions of section 7511(a)(1)(C) trump specific exceptions of
section 241(a)”). Indeed, given that § 241(a) excluded
preference-eligible members before the enactment of the
Due Process Amendments, see Pub. Law. 89-77, 79 Stat.
243 (July 21, 1965) (explaining that the Veterans Prefer-
ence Act of 1944 does not apply), and the Due Process
Amendments were intended to give the same benefits to
non-preference excepted service members as those held by
preference eligible excepted service members, see supra at
5–6, it is not surprising that the Due Process Amend-
ments could not be read to give additional appeal rights to
the petitioner in Todd.
A key factor in Todd was § 241(a)’s explicit reference
to the statutory provisions granting appeal rights. See
King v. Briggs, 83 F.3d 1384, 1388 (Fed. Cir. 1996) (“[A]s
Todd amply demonstrates, Congress knows how to ex-
empt a civil service position from the protections found in
chapters 75 and 77 of title 5 if it so desires.”). Thus, we
found in Todd that “there is no irreconcilability or repug-
nancy between the general rule at section 7511(a)(1)(C)
that excepted service employees with two years of contin-
uous service have appeal rights and the specific exception
to this rule at section 241(a) which permits an agency to
deny the appeal rights to a narrow category of personnel.”
Todd, 55 F.3d at 1578.
In Briggs, we reviewed 29 U.S.C. § 783(a)(1), which
states that the National Council on Disability (Council)
“may appoint, without regard to the provisions of Title 5
governing appointments in the competitive service, or the
provisions of chapter 51 and subchapter III of chapter 53

-- 8 of 10 --

LAL v. MSPB 9
of such title relating to classification and General Sched-
ule pay rates, an Executive Director . . . .” Because “Con-
gress gave the Council the option of disregarding only
certain parts of title 5,” which did not include removal
protections or the definition of employee in § 7511, we
held that § 783(a)(1) did not exempt the Executive Direc-
tor from the broad reach of 5 U.S.C. § 7511(a)(1)(C).
Briggs, 83 F.3d at 1388. Therefore, personnel hired
pursuant to § 783(a)(1) are hired into the excepted service
and fall within the gamut of the Due Process Amend-
ments and § 7511(a)(1)(C).
More recently, in Bennett, we found that a statute
that explicitly gives the authority to “appoint[ ] . . . and
remove[ ] . . . without regard to the provisions of title 5
governing appointments in the competitive service” was
sufficient to exempt the position from the reach of the Due
Process Amendments. 635 F.3d at 1219–20.
Here, unlike the statutes at issue in Bennett and
Todd, 42 U.S.C. § 209(f) merely states “appoint without
regard to the civil-service laws” and does not include an
explicit reference to removal or § 7511. As a result, we
decline to find an additional implicit exemption to
§ 7511(a)’s definition of “employee” for special consultants
like Ms. Lal.
Moreover, we find no conflict between § 209(f)’s au-
thority to hire employees into the excepted service and the
Due Process Amendments’ extension of appeal rights to
non-preference eligible members of the excepted service.
Cf. Todd, 55 F.3d at 1577–78 (finding “no irreconcilability
or repugnancy between the general rule at section
7511(a)(1)(C) that excepted service employees with two
years of continuous service have appeal rights and the
specific exception to this rule at section 241(a) which
permits an agency to deny the appeal rights to a narrow
category of personnel”). Rather, § 7511(a)(1)(C) operates
in this situation as it was intended: it extends adminis-

-- 9 of 10 --

LAL v. MSPB 10
trative and judicial appeal rights to non-preference eligi-
ble members of the excepted service. To 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,” Briggs, 83 F.3d at 1388.
In sum, we find that Ms. Lal was hired into the ex-
cepted service pursuant to § 209(f) and, because § 209(f)
does not explicitly exempt personnel from the definition of
“employee” in § 7511 or include specific reference to
removal authority, the Due Process Amendments extend-
ed jurisdiction over Ms. Lal’s claims. Accordingly, we
reverse the Board’s dismissal for lack of jurisdiction and
remand for further proceedings.
REVERSED AND REMANDED

-- 10 of 10 --