Deborah N. Mouton-Miller v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
DEBORAH N. MOUTON-MILLER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF HOMELAND SECURITY,
Intervenor
______________________
2020-1266
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-19-0643-I-1.
______________________
Decided: January 19, 2021
______________________
D ANIELLE B. O BIORAH , Obiorah Fields, LLC, Jonesboro,
GA, for petitioner.
CALVIN M. M ORROW , Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by K ATHERINE M ICHELLE
SMITH , TRISTAN L. LEAVITT.
SONIA W. M URPHY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
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MOUTON- MILLER v. MSPB 2
Washington, DC, for intervenor. Also represented by
JEFFREY B. CLARK , TARA K. H OGAN , ROBERT E DWARD
K IRSCHMAN , JR.
______________________
Before PROST, Chief Judge, TARANTO and CHEN , Circuit
Judges.
TARANTO , Circuit Judge.
Deborah Mouton-Miller was promoted from her super-
visory position at the United States Postal Service to a dif-
ferent supervisory position at the Department of Homeland
Security, subject to a one-year probationary period. After
less than a year, Homeland Security informed Ms. Mouton-
Miller that her performance had been unsatisfactory and
that she was being reassigned from a supervisory to a non-
supervisory role. Ms. Mouton-Miller appealed that deci-
sion to the Merit Systems Protection Board, which
dismissed Ms. Mouton-Miller’s appeal, determining that it
lacked jurisdiction to review the agency’s action because
the challenged agency action was excluded from the
Board’s jurisdiction by 5 U.S.C. § 7512(C). See Mouton-
Miller v. Dep’t of Homeland Security, No. AT-0752-19-
0643-I-1, 2019 WL 4419912 (M.S.P.B. Sept. 12, 2019). We
agree with the Board and therefore affirm.
I
Before April 2017, Ms. Mouton-Miller worked for the
Postal Service as an Audit Manager. J.A. 36. Her position
was classified as GG-0511-14, step 8, and she received a
salary of $128,081. J.A. 34. On April 2, 2017, Homeland
Security’s Office of the Inspector General hired Ms. Mou-
ton-Miller and promoted her to the position of Supervisory
Auditor. J.A. 34; J.A. 36. Ms. Mouton-Miller’s position
with Homeland Security was classified as GS-0511-14, step
8, with an initial pay rate of $142,367. J.A. 34. There was
no break between her service with the Postal Service and
her service with Homeland Security.
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MOUTON- MILLER v. MSPB 3
Ms. Mouton-Miller’s position as Supervisory Auditor
with Homeland Security was subject to a one-year supervi-
sory probationary period before becoming final. J.A. 34.
On March 29, 2018—less than one year after beginning her
position with the agency—Ms. Mouton-Miller received no-
tice from the Inspector General that she had “performed
unsatisfactorily” and therefore “failed to complete [her] su-
pervisory probationary period.” Id. As a result, she was
reassigned to the nonsupervisory position of Communica-
tions Analyst, GS-0301-14, step 7, with a salary of
$129,937. Id.
Ms. Mouton-Miller appealed the agency’s action to the
Board, in what soon became an adverse-action appeal un-
der 5 U.S.C. Chapter 75.1 Homeland Security moved to
dismiss her appeal, arguing that the Board lacked jurisdic-
tion and that, to the extent jurisdiction existed, Ms. Mou-
ton-Miller’s appeal was moot. Specifically, Homeland
Security argued that Ms. Mouton-Miller’s reassignment to
a nonsupervisory position did not amount to an appealable
adverse action under the pertinent provisions of 5 U.S.C.
Chapter 75, 5 U.S.C. §§ 7511–15. See J.A. 25–27. Even if
it did, Homeland Security continued, the only agency ac-
tion that the Board would have jurisdiction to review would
be the reduction in Ms. Mouton-Miller’s “step” (from 8 to 7)
in her reassignment from a supervisory to nonsupervisory
position. J.A. 27–30. As to that, however, Homeland Se-
curity acknowledged that Ms. Mouton-Miller’s “step”
1 Ms. Mouton-Miller initially filed an individual-
right-of-action appeal in March 2019, see No. AT-1221-19-
0493-W-1, but she agreed that her appeal did not fit in that
category, and the administrative judge assigned to the
matter “open[ed] the current adverse action Appeal,” J.A.
22–23. Because the administrative judge’s ruling eventu-
ally became the final decision of the Board, we hereafter
refer to the administrative judge as the Board.
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MOUTON- MILLER v. MSPB 4
should not have been reduced during her reassignment but
stated that it was already in the process of awarding her
“all related back pay and/or other employment benefits
connected to the correction of her step.” J.A. 36. Therefore,
to the extent that the Board had jurisdiction over the step-
reduction action, Ms. Mouton-Miller’s appeal was moot be-
cause her injury was already being redressed. J.A. 27–30.
On August 13, 2019, the Board issued an Order Find-
ing Jurisdiction, explaining that—under 5 U.S.C.
§ 7512(4)—Ms. Mouton-Miller suffered a reduction in pay,
which constituted an adverse action that the Board had ju-
risdiction to review. J.A. 39. Three days later, however,
the Board issued an Order to Show Cause stating that it
was “inclined to dismiss for lack of jurisdiction” for a differ-
ent reason. J.A. 75. Specifically, it questioned Homeland
Security’s assertion that Ms. Mouton-Miller’s supervisory
service as an Audit Manager with the Postal Service could
be “tacked” to her supervisory service with Homeland Se-
curity under 5 U.S.C. § 3321, which would result in Ms.
Mouton-Miller completing the one-year supervisory proba-
tionary period. J.A. 75. Section 3321—which is titled
“Competitive service; probationary period”—governs pro-
bationary periods in the competitive service (for both non-
supervisory and supervisory appointments). See generally
5 U.S.C. § 3321. It first permits the President to “take such
action . . . as shall provide as nearly as conditions of good
administration warrant for a period of probation—(1) be-
fore an appointment in the competitive service becomes fi-
nal; and (2) before initial appointment as a supervisor or
manager becomes final.” Id. § 3321(a) (emphasis added).
Section 3321(b) then provides:
(b) An individual—
(1) who has been transferred, assigned, or
promoted from a position to a supervisory
or managerial position, and
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MOUTON- MILLER v. MSPB 5
(2) who does not satisfactorily complete the
probationary period under subsection (a)(2)
of this section,
shall be returned to a position of no lower grade
and pay than the position from which the individ-
ual was transferred, assigned, or promoted. Noth-
ing in this section prohibits an agency from taking
an action against an individual serving a proba-
tionary period under subsection (a)(2) of this sec-
tion for cause unrelated to supervisory or
managerial performance.
Id. § 3321(b). As the Board noted, § 3321 and its corre-
sponding federal regulations refer to supervisory appoint-
ments made in the “competitive service,” see J.A. 75; see
also 5 C.F.R. §§ 315.901–315.909, whereas all positions in
the Postal Service fall within the “excepted service,” see
J.A. 75; see also 5 U.S.C. § 2102(a)(1)(A); 39 U.S.C. §§ 201,
1001. Because the “excepted service” is distinct from the
“competitive service,” the Board questioned whether Ms.
Mouton-Miller had in fact completed the required supervi-
sory probationary period—and, thus, whether it had juris-
diction to review the agency’s action. J.A. 75. It explained
that “absent an agency policy which provides for tacking
excepted supervisory service for purposes of completing a
supervisory probationary period,” it likely could not review
Homeland Security’s actions. Id.
In its initial Response to the Agency’s Order to Show
Cause, Homeland Security stated that there was no agency
policy to tack excepted supervisory service on to competi-
tive supervisory service for the purpose of completing a su-
pervisory probationary period. J.A. 82, 85. On September
3, 2019, the Board ordered the agency to provide “its policy
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MOUTON- MILLER v. MSPB 6
covering the supervisory probationary period under 5
C.F.R. §§ 315.901–.909.” J.A. 88.2
Homeland Security responded to the Board’s order by
stating that it did not “have its own written policy covering
the supervisory probationary period under 5 C.F.R.
§§ 315.901–.909.” J.A. 95, 102. Rather, the agency ex-
plained, it “uses the statutory requirements in 5 U.S.C.
§ 3321 and the regulatory requirements in 5 C.F.R.
§§ 315.901–.909 as the policy governing the supervisory
probationary period for competitive service employees.” Id.
Accordingly, Homeland Security argued, the Board could
not hear Ms. Mouton-Miller’s appeal because 5 U.S.C.
§ 7512(C) states that the subchapter at issue, 5 U.S.C.
§§ 7511–15,
does not apply to . . . the reduction in grade of a su-
pervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this
title if such reduction is to the grade held immedi-
ately before becoming such a supervisor or man-
ager.
5 U.S.C. § 7512(C); see J.A. 96. Homeland Security
acknowledged that it previously believed Ms. Mouton-Mil-
ler had satisfied the one-year supervisory probationary pe-
riod because of her supervisory position with the Postal
Service. J.A. 97, 104. But it changed its view upon
2 The Board also ordered Ms. Mouton-Miller to show
that her demotion was “based on partisan political affilia-
tion or marital status” if she sought to come within the
Board’s jurisdiction under 5 C.F.R. § 315.908(b). J.A. 90.
Ms. Mouton-Miller responded that she was not alleging
that her demotion was based on partisan political consid-
erations or her marital status. J.A. 109. The absence of
Board jurisdiction under § 315.908(b) is not disputed in
this court.
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MOUTON- MILLER v. MSPB 7
discovering that all Postal Service employees are employ-
ees in the excepted service, id., which meant that Ms. Mou-
ton-Miller’s position with the Postal Service did not
constitute competitive service and her appeal was barred
by § 7512(C).
Ms. Mouton-Miller argued that the “lack of an agency
policy” as to the supervisory probationary period was not
dispositive; rather, “the issue in [the] case” was whether
she satisfied “the statutory definition of an employee pur-
suant to 5 U.S.C. § 7511.” J.A. 114–15. Section 7511(a)(1)
defines an employee as:
(A) an individual in the competitive service—
(i) who is not serving a probationary or trial
period under an initial appointment; or
(ii) except as provided in section 1599e of
title 10, who has completed 1 year of cur-
rent continuous service under other than a
temporary appointment limited to 1 year or
less
5 U.S.C. § 7511(a)(1). Ms. Mouton-Miller argued that
§ 7511(a)(1)(A)(ii) conferred jurisdiction upon her appeal
because the Board had previously interpreted “current con-
tinuous service” to include both excepted and competitive
service. J.A. 116–17 (discussing McCrary v. Dep’t of Army,
103 M.S.P.R. 266, ¶ 8 (2006), and Fitzgerald v. Dep’t of Air
Force, 108 M.S.P.R. 620 (2008)). Thus, she concluded, her
excepted service with the Postal Service should be tacked
to her competitive service with Homeland Security, permit-
ting the Board to review her appeal. Id.
The Board issued its initial decision on September 12,
2019. See Mouton-Miller, 2019 WL 4419912. It agreed
with Ms. Mouton-Miller that its previous decisions had in-
terpreted “current continuous service” under § 7511 to in-
clude both excepted and competitive service. Id. But it
noted that satisfaction of § 7511’s requirement for
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MOUTON- MILLER v. MSPB 8
“employee” status was not enough for jurisdiction here; Ms.
Mouton-Miller also must avoid the “adverse action” exclu-
sion of § 7512(C), which depends on § 3321. Id. The lan-
guage of § 3321, the Board explained, was materially
different from the language of § 7511, and § 3321 is limited
to competitive service. Similarly, the Board noted, the reg-
ulations corresponding to § 3321 contain express refer-
ences to the “competitive service,” with no mention of the
excepted service. Id. (citing 5 C.F.R. § 315.903, which ex-
plains that § 3321 “applies to appointments and positions
without time limitation in the competitive civil service”).
The Board thus interpreted § 3321 to “not include supervi-
sory service performed in the excepted service.” Id.
Because all Postal Service positions are in the excepted
service, see Van Skiver v. U.S. Postal Service, 9 M.S.P.B.
28, 29 (1982), and because it was undisputed that Ms. Mou-
ton-Miller’s previous supervisory service was with the
Postal Service, the Board found that she had not satisfied
the required one-year probationary period and lacked ap-
peal rights. See Mouton-Miller, 2019 WL 4419912. It
therefore dismissed Ms. Mouton-Miller’s appeal. Id.
The Board’s decision became final on October 17, 2019.
J.A. 6. Ms. Mouton-Miller timely appealed. We have juris-
diction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9).
II
We review the Board’s decision under the standard in
5 U.S.C. § 7703(c), setting aside any “action, findings, or
conclusions” that are “(1) arbitrary, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
Whether the Board lacked jurisdiction is a legal question
that we decide de novo. Bryant v. Merit Systems Protection
Bd., 878 F.3d 1320, 1325 (Fed. Cir. 2017); Forest v. Merit
Systems Protection Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
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MOUTON- MILLER v. MSPB 9
The party asserting jurisdiction bears the burden to show,
by a preponderance of the evidence, that the Board had ju-
risdiction. Garcia v. Dep’t of Homeland Security, 437 F.3d
1322, 1325 (Fed. Cir. 2006) (en banc).
The Board does not have plenary appellate jurisdiction
over personnel actions. Lazaro v. Dep’t of Veterans Affairs,
666 F.3d 1316, 1318 (Fed. Cir. 2012). Rather, “[a]n em-
ployee . . . may submit an appeal to the Merit Systems Pro-
tection Board” challenging only agency actions that are
appealable to the Board “under any law, rule, or regula-
tion.” 5 U.S.C. § 7701; see also Lazaro, 666 F.3d at 1318
(“The Board’s jurisdiction is limited to actions made ap-
pealable to it by law, rule, or regulation.”). Here, the only
jurisdictional grant at issue is the grant to review “adverse
actions” under Title 5, chapter 75, of the U.S. Code.
Section 7512 provides a list of agency actions that fall
within the Board’s statutory jurisdiction, including, for ex-
ample, “removal,” a “reduction in pay,” and a “reduction in
grade.” 5 U.S.C. § 7512. Crucially for this case, § 7512(C)
excludes from that list “the reduction in grade of a super-
visor or manager who has not completed the probationary
period under section 3312(a)(2) of this title if such reduc-
tion is to the grade held immediately before becoming such
a supervisor or manager.” Thus, for Ms. Mouton-Miller’s
demotion to be an agency action subject to Board review,
she must have completed the probationary period referred
to in 5 U.S.C. § 3312(a)(2).
As described supra, § 3312(a) permits the President to
provide for a probationary period before appointments to
the competitive service and to supervisory or manager po-
sitions become final. It expressly refers to the “competitive
service” in both its title and in § 3312(a)(1) when describing
the type of appointments for which the President may pre-
scribe a probationary period. The accompanying regula-
tions to § 3312 are found at 5 C.F.R. §§ 315.901–315.909.
These regulations state that employees who are
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MOUTON- MILLER v. MSPB 10
“reassigned, transferred, or promoted to another supervi-
sory or managerial position” while in the process of com-
pleting a probationary period may count “[s]ervice in the
former position . . . toward completion of the probationary
period in the new position.” 5 C.F.R. § 315.906(a). Thus,
the regulations generally permit tacking when an individ-
ual is reassigned to a second supervisory role after begin-
ning an initial supervisory probationary period.
But the regulations also explain that § 3312 applies to
“appointments and positions without time limitation in the
competitive civil service.” Id. § 315.903 (emphasis added).
This provision, in conjunction with the title and language
of § 3312 referring to the “competitive service,” expressly
limit tacking to two supervisory roles held in the competi-
tive service, and exclude supervisory roles held in the ex-
cepted service. All positions in the Postal Service fall
within the excepted service. See Van Skiver, 9 M.S.P.R. at
381–82; see also 5 U.S.C. § 2102(a)(1)(A); 39 U.S.C. §§ 201,
1001. Thus, Ms. Mouton-Miller cannot tack her former su-
pervisory position at the Postal Service onto her second su-
pervisory position at Homeland Security for purposes of
calculating her probationary period.
Ms. Mouton-Miller’s reliance on the Board’s decision in
Fitzgerald is therefore misplaced. In Fitzgerald, as the
Board noted, the plaintiff alleged that he was an “em-
ployee” under § 7511(a)(1)(A)(ii) because “current continu-
ous service” included service in both the excepted and
competitive service. See Fitzgerald, 108 M.S.P.R. at 624–
26. The Board concluded that—because “the language of
the statute itself” contained no modification limiting “ser-
vice”—“current continuous service” included both competi-
tive and excepted service for the purpose of determining
“employee” status under § 7511(a)(1)(A)(ii). Id. at 625–27.
Here, however, the question is not Ms. Mouton-Miller’s
“employee” status. It is whether Ms. Mouton-Miller com-
pleted her required supervisory probationary period under
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MOUTON- MILLER v. MSPB 11
§ 3321(a)(2), such that her non-retention in the supervisory
position was an “adverse action,” which depends on that
agency action being outside the exclusion stated in
§ 7512(C). In non-precedential decisions, we have recog-
nized that the interpretation of “current continuous ser-
vice” under § 7511 is “irrelevant” to determining whether
an individual is “subject to an appealable agency action”
under § 7512. Koller v. Merit Systems Protection Bd., 250
F. App’x 312, 314–15 (Fed. Cir. 2007); see also Currie v.
Merit Systems Protection Bd., 679 F. App’x 995, 997 (Fed.
Cir. 2017) (“We are unpersuaded that the Board has juris-
diction over [Currie’s] appeal simply because he satisfied
the definition of ‘employee’ under 5 U.S.C.
§ 7511(a)(1)(A)(ii).”). We do so again here. Ms. Mouton-
Miller completed less than the required one year of compet-
itive service in her supervisory role with Homeland Secu-
rity; she is thus excluded from seeking review before the
Board under § 7512(C). See 5 U.S.C. § 7512(C); see also 5
C.F.R. § 315.908 (employees assigned to “a nonmanagerial
or nonsupervisory position” who do not allege that their re-
assignment was based on marital status or partisan politi-
cal affiliation have “no appeal right”).
Ms. Mouton-Miller relies on this court’s decision in
McCormick v. Department of Air Force, 307 F.3d 1339 (Fed.
Cir. 2002). But that decision is not helpful to her argu-
ment. See Petitioner Opening Br. at 9. McCormick in-
volved only the question of “employee” status under § 7511,
not the question of the exclusion from “adverse action” re-
view in § 7512(C). See McCormick, 307 F.3d at 1341–43.
We note that 5 C.F.R. § 315.905 grants broad discretion
to agencies to “determine the length of the probationary pe-
riod.” But Homeland Security has stated that it has no
separate policy governing the supervisory probationary pe-
riods of its employees. See J.A. 95–96. Thus, we have no
occasion to consider whether a separate agency policy per-
mitting tacking between supervisory roles with the
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MOUTON- MILLER v. MSPB 12
excepted service and the competitive service would be per-
missible under the applicable statutes and regulations.
Because it is undisputed that Ms. Mouton-Miller spent
less than one year in her supervisory position at Homeland
Security and that her previous role at the Postal Service
was in the excepted service, we conclude that she has not
satisfied the required supervisory probationary period un-
der § 3312 and that the Board therefore has no jurisdiction
to review the agency’s action, which comes within the ex-
clusion stated in § 7512(C).
III
For the foregoing reasons, we affirm the judgment of
the Merit Systems Protection Board dismissing the case for
lack of jurisdiction.
The parties shall bear their own costs.
AFFIRMED
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