[00:00:00] Speaker 04:
presents essentially the same issue.

[00:00:03] Speaker 04:
The argued case is number 17-1535, Williams versus MSPB.

[00:00:10] Speaker 04:
Mr. Schroenhart, right?

[00:00:15] Speaker 04:
Did I pronounce that correctly?

[00:00:16] Speaker 05:
Schroenhart, Your Honor.

[00:00:31] Speaker 04:
Go ahead.

[00:00:32] Speaker 05:
Thank you Judge Dyke.

[00:00:33] Speaker 05:
Good afternoon and may it please the court.

[00:00:35] Speaker 05:
Paul Sheinhardt, appearing today from McDermott, Will and Utmary, representing the appellant Derek T. Williams, adverse to the Merit Systems Protection Board and the U.S.

[00:00:44] Speaker 05:
Postal Service.

[00:00:45] Speaker 05:
Mr. Williams respectfully asks that this court reverse the MSPB's finding that it lacks jurisdiction over his appeal and remand this case for final adjudication on the merits or in the alternative to restore Mr. Williams directly to his

[00:00:59] Speaker 05:
position with the US Postal Service with back pay.

[00:01:04] Speaker 04:
If we were to disagree with you about the break in service and to conclude that under the regulation there was a break in service here then we're confronted with the Exum issue and unfortunately neither one of you really addresses the authority on which Exum relied

[00:01:26] Speaker 04:
in reaching the conclusion that it did, which is our decision in Covington.

[00:01:31] Speaker 04:
Are you familiar with that?

[00:01:33] Speaker 05:
As a general matter, Your Honor, I am.

[00:01:36] Speaker 05:
I have reviewed the decision, but I agree it was not something that was briefed by the parties, and it is a decision, however, that was relied on by the board in reaching its EXIM rule, a rule that is now applied for approximately 20 years.

[00:01:54] Speaker 04:
Well, I guess the question is whether

[00:01:56] Speaker 04:
the Exum role is compelled by Covington or not?

[00:02:04] Speaker 05:
Frankly, Your Honor, I don't know.

[00:02:05] Speaker 02:
I mean, doesn't Covington rely on the doctrine which is prevalent in our case law involving retirements and resignations in which an employee who takes an otherwise facially voluntary act, such as retirement or resignation, can nonetheless appeal to the board and say,

[00:02:25] Speaker 02:
because I was given improper information, or I was forced out, or the like, that that becomes an involuntary adverse action appealable to the board.

[00:02:35] Speaker 02:
That's what Covington's relying on, isn't it?

[00:02:37] Speaker 05:
That's generally my understanding, Your Honor.

[00:02:40] Speaker 02:
And so that's talking about what's an appealable action versus who's an employee entitled to appeal, isn't it?

[00:02:47] Speaker 05:
I'm not sure there is any real distinction between the question of who is an employee and what is an appealable action in the case of this type.

[00:02:54] Speaker 02:
Well, sure there is.

[00:02:55] Speaker 02:
I mean, if you're an employee entitled to appeal an adverse action, you can.

[00:03:01] Speaker 02:
If you're an employee not entitled to appeal, even if you're subject to an involuntary retirement or the like, it probably wouldn't happen with the retirement because you're too far out.

[00:03:14] Speaker 02:
But a resignation, say.

[00:03:16] Speaker 02:
If you're six months into the job and you resign and then come back and say, but I was forced to resign, you have no appeal rights because you haven't acquired them yet as an employee within 7511.

[00:03:27] Speaker 02:
Isn't that right?

[00:03:28] Speaker 05:
You would not have acquired them if there had not been the time.

[00:03:32] Speaker 05:
Here, however, we have a situation where you have an employee.

[00:03:37] Speaker 05:
The facts of this case are perhaps helpful.

[00:03:39] Speaker 05:
You have someone who was clearly an employee at the time you changed positions.

[00:03:43] Speaker 05:
And so the act of changing positions

[00:03:46] Speaker 05:
functionally removed an already vested appeal right.

[00:03:49] Speaker 02:
So I think there... But doesn't that always happen in the federal government?

[00:03:52] Speaker 02:
If you take a job, if you move from one agency to another or even within an agency, if you have a break in service, as OPM's regulations recognize, you lose your appeal rights.

[00:04:08] Speaker 05:
That I believe would take us back to the opening question is whether we're to assume that the OPM regulation of a break in service would apply to

[00:04:16] Speaker 05:
any time you're not at work for a particular day, regardless of the reason and what actually qualifies as a break.

[00:04:24] Speaker 02:
If we are to assume... If one day, which I gather is OPM's regulation, and it's been their regulation for quite some time, isn't enough, then what is?

[00:04:36] Speaker 05:
Your Honor, respectfully, I agree that the regulation states a break of more than one worked or one or more work days.

[00:04:44] Speaker 05:
But that doesn't tell us what qualifies as a break.

[00:04:48] Speaker 05:
For instance, the board has consistently held that entry into a non-pay status is not considered a break in service, even though you are not in fact appearing for one or more work days.

[00:05:01] Speaker 02:
Sure, but that's because there's no separation document.

[00:05:05] Speaker 02:
Well.

[00:05:05] Speaker 02:
There may be, there may not even be a personnel action at all.

[00:05:10] Speaker 02:
There may just be authority for you to take a leave without pay or some other kind of non-pay status.

[00:05:16] Speaker 02:
But when you actually get a separation document, and you have that here, right?

[00:05:19] Speaker 02:
You have a specific personnel notification saying your client is being separated from the RCA position.

[00:05:26] Speaker 02:
And then you get a new one that makes his appointment to a new CCA position effective five days later.

[00:05:32] Speaker 02:
That's a break in service, isn't it?

[00:05:34] Speaker 05:
I don't believe so, Your Honor.

[00:05:35] Speaker 05:
And this is where I believe the MSPP's prior decision in Rodin is helpful and can assist us in working our way through this.

[00:05:42] Speaker 02:
It is the problem with Rodin that it relies on this very kind of loosey-goosey notion of some kind of employment contract, right?

[00:05:49] Speaker 02:
It uses that language and says, let's look to the substance rather than the niceties of this.

[00:05:57] Speaker 02:
The problem with Rodin, and I think the board is very correct in overruling it, is

[00:06:03] Speaker 02:
Federal employment isn't by contract regularly.

[00:06:06] Speaker 02:
It's by appointment, and its meets and bounds are set out by the statutes.

[00:06:11] Speaker 02:
So when you look at whether somebody is employed or not, you look at whether there's an appointment document.

[00:06:16] Speaker 02:
Isn't that right?

[00:06:17] Speaker 05:
Yes, Your Honor.

[00:06:18] Speaker 02:
And here, in fact, you will... If you look at whether they were separated, you look and see whether there was a separation document.

[00:06:26] Speaker 05:
Again, the separation is reflected in the separation document.

[00:06:29] Speaker 05:
That does not necessarily suggest that there was a complete lack of continuity of employment with the USPS.

[00:06:36] Speaker 02:
What covers those five days when he wasn't employed by the USPS?

[00:06:40] Speaker 05:
There's two, I think, critical facts here, Your Honor.

[00:06:42] Speaker 05:
First is that the offer of the position into the CCA role occurred a month approximately.

[00:06:52] Speaker 02:
Why is that relevant?

[00:06:53] Speaker 05:
That's relevant because it evidences

[00:06:56] Speaker 05:
relative status of the parties here, that being Mr. Williams and the U.S.

[00:07:00] Speaker 02:
Postal Service, and between the two of them... But that assumes they would have some obligation to actually appoint him to that position just based upon that offer, isn't it?

[00:07:10] Speaker 05:
The offer itself is expressly a contingent offer, but it is one of the foundational underpinnings, if you will, of their agreement.

[00:07:18] Speaker 02:
But until he's actually appointed, he has no legal status, that's right.

[00:07:21] Speaker 02:
Well, Your Honor, that's where I think the... I mean, isn't there case law to suggest or government policy the way it operates to suggest?

[00:07:28] Speaker 02:
Even if you get an offer for employment with the federal government and even if you accept that offer, it can be revoked up to until you actually get formally appointed.

[00:07:40] Speaker 02:
Isn't that right?

[00:07:41] Speaker 05:
That's my understanding.

[00:07:42] Speaker 02:
So he actually had no basis to believe that he was going to be appointed until the employment document to the CCA position was assigned, right?

[00:07:52] Speaker 05:
I wouldn't go that far, Your Honor.

[00:07:54] Speaker 02:
Here, although I recognize- An illegally enforceable right.

[00:07:58] Speaker 05:
And I suppose that's exactly why we're here.

[00:08:01] Speaker 05:
I recognize that SF 50 forms or the postal services version, the PS form 50, did not itself have a true force of law.

[00:08:08] Speaker 05:
But as Your Honor notes, it is one of the most helpful documents we can have in understanding the character of employment.

[00:08:16] Speaker 05:
One of the relevant form 50s here can be found in appendix 157.

[00:08:21] Speaker 05:
At appendix 157, the same PS form 50 that establishes that Mr. Williams was being separated from his position as an RCA also acknowledges his reappointment into position as a CCA and states that he has a last day in a pay status of April 2, 2015.

[00:08:42] Speaker 05:
Mr. Williams did not understand himself to being terminated from the Postal Service.

[00:08:48] Speaker 05:
He understood himself being separated from a position

[00:08:51] Speaker 05:
as an RCA with a required time in a non-pay status of five days before entering into a position.

[00:08:59] Speaker 02:
Where does that required break in status come from?

[00:09:03] Speaker 05:
My understanding is that it comes from the collective bargaining agreement with one of the letter carriers unions.

[00:09:08] Speaker 04:
And what's the purpose of it?

[00:09:13] Speaker 05:
I don't fully understand the purpose for all of the breaks in service.

[00:09:17] Speaker 05:
It would appear to be that certain of the breaks in service are required

[00:09:20] Speaker 05:
so as to avoid certain union benefits that otherwise would be obtained if more than a full calendar year of service were to be served.

[00:09:31] Speaker 05:
And so for certain positions, a service time of 360 days has been set, and it's required to take the five-day break at the front end, I understand.

[00:09:40] Speaker 01:
I thought I had heard that one of the purposes was for health benefits.

[00:09:44] Speaker 01:
Does that ring a bell at all?

[00:09:45] Speaker 05:
That's generally my understanding is that it's for benefits associated with

[00:09:49] Speaker 05:
how the union is bargained for the positions.

[00:09:51] Speaker 01:
And so is it the union that's bargained for that five-day break in service?

[00:09:56] Speaker 05:
That's my understanding, yes.

[00:09:57] Speaker 05:
Is that it's a bargaining position between the union and the agency.

[00:10:01] Speaker 04:
What is it accomplished by requiring a five-day break?

[00:10:04] Speaker 05:
It creates situations where employees are not within a position for a sufficient period of time to entitle them to certain health, perhaps retirement or other relief benefits.

[00:10:14] Speaker 04:
It denies them the health benefits.

[00:10:16] Speaker 05:
Effectively, unless they exceed that

[00:10:19] Speaker 05:
period of service and enter perhaps into another position that's accepted within the bargaining agreement.

[00:10:25] Speaker 01:
In your brief, you referred to Chevron deference being afforded to the board's decision and interpretation.

[00:10:32] Speaker 01:
But isn't the real question here, if Chevron deference is going to be applied, isn't it whether Chevron deference would apply to the agency's definition of current continuous employment?

[00:10:43] Speaker 05:
I believe that both, Your Honor, are appropriate inquiries here.

[00:10:46] Speaker 05:
Ultimately, we have a situation where we have a

[00:10:49] Speaker 05:
functioning, parroting regulation.

[00:10:51] Speaker 01:
What is your response to whether Chevron deference should be given to the agency's current continuous employment?

[00:10:57] Speaker 05:
With respect to what qualifies as continuous, I would not believe that Chevron deference is appropriate as the regulation merely provides the concept of a break which is definitional of continuous and is not actually exercising agency.

[00:11:12] Speaker 01:
What about the language of break and federal civilian employment of a work day?

[00:11:17] Speaker 01:
It's not just a break, it's a break

[00:11:20] Speaker 01:
a federal civil employment of a work day, just a work day.

[00:11:23] Speaker 05:
So first as to the federal civil employment and this just to set this issue aside, I'm well aware that this court in Wilder decided that deference was afforded to this regulation for purposes of what type of service would qualify under the board's regular under the statute and then that the board's regulation specifying federal civilian service was appropriate as

[00:11:48] Speaker 05:
a clarifying regulation.

[00:11:51] Speaker 04:
You mean the LPM regulation?

[00:11:54] Speaker 05:
Yes, Your Honor.

[00:11:55] Speaker 01:
I think the harder language to grapple with is probably of a work day.

[00:11:59] Speaker 05:
The break of a work day.

[00:12:01] Speaker 05:
What remains a question, and Your Honor, I don't have a dispute with what a work day is.

[00:12:07] Speaker 05:
The question is, what is a break?

[00:12:10] Speaker 05:
Is a break a situation in which you are formally without employment and no intention of returning to that employment

[00:12:18] Speaker 05:
or is a break any time when you are in a non-pay status for a period of a work day.

[00:12:25] Speaker 02:
But he didn't have intention of returning to the same employment.

[00:12:29] Speaker 02:
He was taking a new job, albeit within the same agency.

[00:12:33] Speaker 05:
The appellant's understanding was that he was taking a new position within the same agency.

[00:12:38] Speaker 05:
That's a new job, right?

[00:12:39] Speaker 02:
It's effectively... I'm still confused what you think is an appropriate break.

[00:12:45] Speaker 05:
If, for instance, he resigned from one agency and went to work at another agency, that's something that this Court has clearly addressed as something that's outside of the bounds of the Exum Rule.

[00:12:57] Speaker 02:
But if they're both within the same agency, what if I'm an attorney at the Civil Division of the Justice Department and I decide to take a job with the U.S.

[00:13:05] Speaker 02:
Attorney's Office back in my home state of Ohio, and I decide I work really hard at the Civil Division because they work me really hard, and I want a three-month vacation

[00:13:16] Speaker 02:
but I've already accepted and received an offer to go to the U.S.

[00:13:19] Speaker 02:
Attorney's office in Ohio.

[00:13:22] Speaker 02:
Is that three month break?

[00:13:24] Speaker 02:
I get an appointment, I get a separation paper, I get a new appointment paper three months later, but I've already accepted an offer.

[00:13:32] Speaker 02:
Is that a break in service?

[00:13:33] Speaker 05:
I would expect, Your Honor, that it would be.

[00:13:35] Speaker 05:
And the difference in the character of that to what we're seeing here is one of voluntariness.

[00:13:40] Speaker 05:
In that situation, the government employee is voluntarily leaving the government service for a period of time,

[00:13:45] Speaker 05:
and then returning to government service.

[00:13:47] Speaker 02:
Let's aside that voluntariness question, because I think that's another aspect of the case as it doesn't really deal with what's a break.

[00:13:55] Speaker 02:
A break is a break, whether it's voluntary or not.

[00:13:57] Speaker 02:
You may have the Exum line to help you come out when it's an involuntary break, but that doesn't really say anything about break.

[00:14:04] Speaker 02:
So why is three months a break, but five days isn't?

[00:14:08] Speaker 05:
Your honor, I would not qualify it on the length of time, or at least not with any strict time switch.

[00:14:13] Speaker 02:
But that's what OPM's regulations define it as, and we have to defer to OPM's regulations.

[00:14:21] Speaker 05:
You do not need, well, only a certain level of deference.

[00:14:24] Speaker 02:
How do you define break?

[00:14:33] Speaker 02:
Give me some theory of what's a break, rather than just

[00:14:37] Speaker 02:
a separation under an equivalent SF-50 and a reappointment under equivalent SF-50?

[00:14:44] Speaker 05:
I suppose, Your Honor, it's actually that term reappointment that consistently catches me.

[00:14:49] Speaker 05:
If there is actually a complete termination such that you have severed ties with an agency or an employer, that to me would become a break.

[00:14:57] Speaker 02:
What does mean complete severing of ties?

[00:15:01] Speaker 02:
We have an SF-50 here ending his appointment.

[00:15:04] Speaker 02:
and then giving him a new appointment in a different position.

[00:15:08] Speaker 05:
Well, Your Honor, that's precisely the issue is that here that same SF-50 that purports to say you are no longer part of this organization says, but yes, we fully intend for you to be a part of this organization.

[00:15:19] Speaker 05:
We require a break in a non-pay status of five days.

[00:15:23] Speaker 02:
If on day four they had changed their mind and said, oh, we don't want you anymore.

[00:15:28] Speaker 02:
We're not giving you a new appointment.

[00:15:30] Speaker 02:
he had no enforceable rights to that new appointment until he actually gets the appointment document, right?

[00:15:36] Speaker 05:
At that time, Your Honor, he may not have any enforceable rights as to that new appointment, whether he could then say that his RCA position was improperly yielded.

[00:15:45] Speaker 02:
Right, but you're trying to get back to the voluntary stuff rather than tell me what you think break is.

[00:15:51] Speaker 02:
I don't see how we define break other than by looking at the appointment document.

[00:15:54] Speaker 02:
I'm sorry, you can answer, but I've taken the way over.

[00:15:57] Speaker 02:
Sorry.

[00:15:57] Speaker 05:
uh... uh... appendix of one to seven so termination on career is the designated description that was assigned to nature of action code three fifty two which appears in box seventy seven uh... that's a

[00:16:24] Speaker 05:
standardized set of codes to be used in Box 77 that the description is then auto-completed.

[00:16:30] Speaker 05:
Termination non-career is, as I understand it, the standard designation when in fact you are separating from a position of this type.

[00:16:41] Speaker 05:
Here I think the most critical thing to focus on is the

[00:16:46] Speaker 05:
remarks section at the bottom that is tied to code 522 and box 80.

[00:16:51] Speaker 04:
Which page is this on, 157?

[00:16:53] Speaker 05:
Yes, Your Honor, again, appendix at 157.

[00:16:56] Speaker 04:
Where at the bottom?

[00:16:57] Speaker 05:
At this point, Your Honor, I'm directing you to the remarks section near the bottom of the page.

[00:17:03] Speaker 05:
We have last day and pay status, April 2, 2015.

[00:17:07] Speaker 05:
Separation employee was separated for required break in service reappointment to different position.

[00:17:14] Speaker 04:
This, in my view, is a direct reflection of the Postal Service's view that this is not an employee that is... Are you relying on the requirements of the union contract as being the determinative factor here so that the fact that the union contract required the five-day break-in service means that it shouldn't be counted as a break?

[00:17:36] Speaker 04:
Is that what your argument is?

[00:17:38] Speaker 05:
Functionally, yes, Your Honor.

[00:17:39] Speaker 05:
It's our contention that a required break-in service is not, in fact, a break-in service.

[00:17:44] Speaker 05:
Getting to Judge Hughes' question, which I believe is tied to yours, Your Honor.

[00:17:50] Speaker 05:
It is our view that a required break in service under the union contract does not qualify as a break in service under 7511 simply by virtue of using the word break.

[00:18:04] Speaker 01:
You're really lying on Rodin for that position, right?

[00:18:08] Speaker 01:
You wrote in with the idea that, you know, look at the policy behind what Congress is trying to do here and determine whether this, in fact, is a break or not.

[00:18:19] Speaker 05:
Well, Your Honor, agreed.

[00:18:21] Speaker 05:
And yes, Rodin would tell us that we shouldn't even be getting it to the OPM's regulation, that OPM's regulation, simply using the term break of a work day instead of continuous, is not functioning as

[00:18:32] Speaker 05:
an active agency expertise to promulgate a regulation.

[00:18:36] Speaker 02:
If that's your logic, doesn't it convert all CCA positions that are occupied by preference eligible employees into appealable positions?

[00:18:48] Speaker 02:
Because even if they didn't come from an appealable position, if they're put in a CCA position and they're preference eligible,

[00:18:55] Speaker 02:
and that mandatory five-day break doesn't count, then as soon as they get a few days into their second one, they now have appeal rights.

[00:19:04] Speaker 02:
It seems contrary to everything that the CBA stands for.

[00:19:11] Speaker 02:
I mean, it requires a break in service.

[00:19:13] Speaker 02:
I'm just really shocking to the union that you're taking this position.

[00:19:20] Speaker 05:
I don't see why the collective bargaining agreement should operate in such a way as to eliminate appeal rights to the MSPB.

[00:19:28] Speaker 05:
The bargaining agreement is there to account for the duration and types of various positions, pay grades of those positions, benefits that may be eligible and awarded to those positions.

[00:19:38] Speaker 02:
It also might be there to account for the fact that unions prefer arbitration in the grievance proceedings over appeal rights.

[00:19:49] Speaker 02:
And if that's the case, then they want these CCA people to go through the grievance process, not through the MSPB process.

[00:19:58] Speaker 05:
I don't believe the parties have briefed or that there's been extensive argument on there being an alternative process that Mr. Williams ought to have taken as opposed to attempting to exercise his appeal rights.

[00:20:09] Speaker 02:
He's clearly entitled to go through the grievance process under the CBA, right?

[00:20:13] Speaker 02:
You haven't looked at the CBA?

[00:20:16] Speaker 02:
I'm sure that postal service people will tell you that he is.

[00:20:19] Speaker 02:
Generally, postal service employees who are preference eligible have either the select option of going through the grievance proceedings or through appeal rights if they have them.

[00:20:30] Speaker 02:
There's nothing that prevented him from filing agreements here, I would think.

[00:20:34] Speaker 02:
He just didn't do it.

[00:20:36] Speaker 05:
Well, Your Honor, respectfully, the appellant had been employed

[00:20:40] Speaker 05:
for, in his view, over two years in the U.S.

[00:20:43] Speaker 05:
Postal Service continuously, and he is eligible and believed himself eligible for appeal rights under 7511.

[00:20:50] Speaker 04:
Okay, why don't we stop there.

[00:20:54] Speaker 04:
We'll give you two minutes for the model.

[00:21:00] Speaker 03:
Thank you.

[00:21:00] Speaker 03:
Mr. Fahmy?

[00:21:07] Speaker 03:
Good afternoon.

[00:21:08] Speaker 03:
May it please the Court?

[00:21:09] Speaker 04:
The MSPB correctly determined that... Why is this union agreement require a five-day break in service?

[00:21:16] Speaker 03:
That may be something my colleague for the government can answer better than the MSPB can.

[00:21:21] Speaker 03:
Typically, we do not review contractual provisions.

[00:21:24] Speaker 03:
That's something that perhaps FLRA can do, but that's not something that's within the MSPB's jurisdiction.

[00:21:30] Speaker 03:
My understanding of the CVA, though, from my reading of it, would be that the five-day break in service is there to ensure

[00:21:38] Speaker 03:
that there's only a 360-day term in the CCA position, which would likely, and this is just speculation on my part, be to prevent people from getting 365 days of employment, which would then afford them MSPB appeal rights.

[00:21:52] Speaker 03:
But again, that might be something my colleague for the government can answer better than me.

[00:21:58] Speaker 03:
So again, the MSPB correctly determined that the petitioner failed to establish jurisdiction under the rodent doctrine, but we do request that this matter be remanded so we can further examine

[00:22:08] Speaker 03:
or line of cases under excellent.

[00:22:10] Speaker 04:
So you don't discuss Covington in your brief, right?

[00:22:13] Speaker 03:
We did not discuss Covington in your brief.

[00:22:15] Speaker 03:
You are correct, Your Honor.

[00:22:16] Speaker 03:
But the reason we did not is because we were asking for a remand.

[00:22:19] Speaker 03:
And I want to be careful about how I address that here, because I don't want to delve into giving an advisory opinion about what we would do on remand.

[00:22:28] Speaker 03:
But you are correct that it comes out of the Covington line of cases about making informed decisions and only being bound by informed decisions.

[00:22:36] Speaker 03:
Whether that is correct is the reason we're asking for a remand so we can examine further.

[00:22:41] Speaker 04:
Doesn't one of the cases relates to allegedly involuntary retirements or resignations, right?

[00:22:48] Speaker 04:
Not transfers from one job to another.

[00:22:51] Speaker 03:
Well, again, Your Honor, I don't want to opine too much about the propriety of- Well, you have the discretion whether to award a remand or not.

[00:23:00] Speaker 01:
And so you should probably go ahead and answer the question.

[00:23:02] Speaker 03:
I understand that you do have the discretion, Your Honor.

[00:23:06] Speaker 03:
It's something, though, that we are barred from issuing advisory opinions by law.

[00:23:10] Speaker 03:
And if we were to answer that question and discuss the propriety.

[00:23:13] Speaker 04:
So if we ask hypothetical questions, you can't discuss advisory opinions.

[00:23:19] Speaker 03:
Well, I will say yes.

[00:23:21] Speaker 03:
The Covington decision is about adverse actions and whether something is an adverse action.

[00:23:26] Speaker 03:
And the excellent line of cases stems from that by extending the doctrine to say that

[00:23:34] Speaker 03:
Other uninformed decisions will also not be binding.

[00:23:38] Speaker 03:
But whether or not that's an appropriate interpretation is the reason we're seeking the remand.

[00:23:43] Speaker 03:
We would like to examine that further and see if that is actually a valid doctrine.

[00:23:49] Speaker 02:
Even if we kept that doctrine, wouldn't the involuntary action here and the adverse action be his resignation from his RCA position?

[00:23:59] Speaker 02:
It would have nothing to do with his CCA position.

[00:24:04] Speaker 03:
That is possible, but I do not believe he, the petitioner, has alleged an involuntary resignation.

[00:24:09] Speaker 02:
Well, I know he hasn't, but that's, I mean, the whole line of case law we have on involuntary actions, whether they're involuntary retirements or involuntary resignations, are directed to that decision being made without a lack of knowledge.

[00:24:24] Speaker 02:
And if they show that it's true, then they usually get to rescind that decision.

[00:24:30] Speaker 02:
It rarely happens, but I think it's happened a couple of times.

[00:24:34] Speaker 02:
that decision to involuntarily resign that made without proper knowledge, that is the adverse action that can then be appealed.

[00:24:44] Speaker 02:
So how would it affect his status as an employee for a subsequent position at all?

[00:24:54] Speaker 02:
In other words, how can the involuntary action doctrine

[00:24:57] Speaker 02:
give you appeal rights in a new position versus just let you fully exercise your appeal rights for the prior position?

[00:25:06] Speaker 03:
Well, Your Honor, I think that question hits at why we would like the remand.

[00:25:10] Speaker 03:
A lot of the above.

[00:25:11] Speaker 02:
Are you aware?

[00:25:12] Speaker 02:
I mean, doesn't it make more sense?

[00:25:14] Speaker 02:
I know you don't want to answer this.

[00:25:16] Speaker 02:
I'm not going to hold your board to what you say.

[00:25:18] Speaker 02:
We're trying to ask you questions and hypotheticals, but maybe you have been directed not to answer.

[00:25:26] Speaker 02:
But it seems to me the logical extension of Covington to these cases in the way this has been applied is always to the decision that is alleged to have been involuntary, which is here to resign the RCA position and accept a CCA position.

[00:25:42] Speaker 02:
So if the decision to resign is involuntary, then that's where his appeal is from.

[00:25:49] Speaker 02:
And it could be, potentially, if it was shown to be involuntary put back in that position.

[00:25:53] Speaker 02:
But it doesn't have anything to do with the CCA position.

[00:25:56] Speaker 02:
Why isn't that the right way to look at it?

[00:25:58] Speaker 03:
That would have to be something first alleged to the board.

[00:26:00] Speaker 03:
That's not something the board can just consider a suespante.

[00:26:03] Speaker 03:
If he wanted to allege an involuntary resignation, that would be something the board considered.

[00:26:09] Speaker 03:
But that's not how this issue arose to the board.

[00:26:12] Speaker 03:
It's just whether or not he was an employee with appeal rights.

[00:26:15] Speaker 04:
What is the board's position?

[00:26:17] Speaker 04:
retirement and resignation.

[00:26:20] Speaker 04:
Is retirement and resignation involuntary under the board decisions if the employee is not advised that by retiring or resigning he or she is surrendering the right to challenge the adverse action?

[00:26:35] Speaker 03:
The board's position on involuntary resignations follows the Covington doctrine which is incorrect information presented to the employee.

[00:26:42] Speaker 04:
Forget about incorrect information.

[00:26:44] Speaker 04:
The failure to advise

[00:26:47] Speaker 04:
about the surrender of appeal rights.

[00:26:50] Speaker 04:
Is that considered to make the resignation involuntary?

[00:26:55] Speaker 03:
I believe that would be an appropriate extension of the Covington doctrine, but at the same time, I'm not entirely certain.

[00:27:01] Speaker 03:
I'm happy to provide supplemental briefing on that question if the court would like it.

[00:27:06] Speaker 03:
But I'm uncertain as to whether or not the board has found lack of information to be the equivalent of misleading or incorrect information under Covington.

[00:27:18] Speaker 04:
Thank you.

[00:27:47] Speaker 00:
Good afternoon.

[00:27:48] Speaker 00:
On behalf of the United States Postal Service, we ask that this panel deny Mr. Williams' petition.

[00:27:53] Speaker 04:
So why does the union agreement require a five-day break?

[00:27:57] Speaker 04:
What's the purpose of that?

[00:27:59] Speaker 00:
We have some evidence in the record.

[00:28:00] Speaker 00:
I wouldn't say it's necessarily complete information.

[00:28:03] Speaker 00:
There is an affidavit in the record from a Postal Service Employment and Payroll Specialist who talks about the effect of the five-day break in service on federal health

[00:28:13] Speaker 00:
federal employee health benefits, and federal employee retirement benefits, and how that interplays with the 360 days of a CCA position.

[00:28:22] Speaker 00:
That's the best explanation we have in the record.

[00:28:24] Speaker 00:
Whether there might be other explanations in the record as to, say, why the union agrees to the five-day break in service, it's just not in the record.

[00:28:33] Speaker 00:
Is that in our appendix?

[00:28:34] Speaker 00:
It is.

[00:28:35] Speaker 00:
I can get a page number.

[00:28:37] Speaker 02:
So they don't get employee benefits through the federal government if it's less than 365?

[00:28:43] Speaker 00:
They get some and I can point you to the direct language.

[00:28:46] Speaker 00:
So it starts at appendix 449 and runs through 481 and that also includes a part of the collective bargaining agreement.

[00:28:55] Speaker 00:
So starting at 449.

[00:29:02] Speaker 00:
Again this is a declaration of Ms.

[00:29:05] Speaker 00:
Erin Demick who is an employment and placement specialist, a team lead at the Postal Service.

[00:29:10] Speaker 00:
So she explains on 450

[00:29:15] Speaker 00:
In paragraph eight, when an employee serving in an RCA appointment, Mr. Williams' first appointment, applies for and is selected for a CCA appointment, his second.

[00:29:24] Speaker 00:
A five-day break in service is necessary to, A, ensure that the employee serves in the 360-day appointment, because that CCA position is a term limited 360 days.

[00:29:34] Speaker 00:
As specified in the national agreement,

[00:29:36] Speaker 00:
B, remains eligible to participate in federal employee health benefits, and C, does not become eligible for coverage under federal employee retirement services first.

[00:29:48] Speaker 04:
OK.

[00:29:50] Speaker 02:
I mean, it also, at least from part of what you read, references the CCA position as a non-career position, which has a certain term of art in the federal employment lingo, doesn't it?

[00:30:02] Speaker 00:
Yes, it really does.

[00:30:06] Speaker 00:
I apologize for the panel's frustration with the lack of evidence in this record.

[00:30:09] Speaker 00:
Part of that may be because Mr. Williams has never challenged the legal propriety of the five-day break in service required by the collective bargaining agreement in the first instance.

[00:30:19] Speaker 04:
No, but that's true.

[00:30:20] Speaker 04:
But he is arguing that the fact that the break was mandatory and required somehow should affect the question of whether it should constitute a break.

[00:30:34] Speaker 00:
The United States Postal Service would agree with that.

[00:30:35] Speaker 00:
So in the collective bargaining agreement, it does specifically say that a transfer from an RCA position to a CCA position requires a five-day break.

[00:30:44] Speaker 00:
It actually does use that word break, which mimics in Paris the regulation, which also uses the word break.

[00:30:52] Speaker 00:
So yes, in that instance, the Postal Service would argue that the collective bargaining agreement actually mimics the same language in the regulation and that a break

[00:31:02] Speaker 00:
as that term is defined in the regulation, is what was intended, right?

[00:31:06] Speaker 00:
A break or an interruption in service of more than a work day meant to interrupt the current continuous service requirement necessary for board appeal rights in the first instance.

[00:31:16] Speaker 02:
Is there any way to non-competitively transfer from an RCA position to a CCA position?

[00:31:23] Speaker 00:
I don't believe there is, no.

[00:31:25] Speaker 00:
There are job descriptions in the record, which I can find if you need me to.

[00:31:28] Speaker 01:
And if there's no right to an MSPB appeal, then what is the alternative to go to arbitration?

[00:31:35] Speaker 01:
Is that the alternative?

[00:31:36] Speaker 00:
So that also was not briefed below.

[00:31:38] Speaker 00:
I have it on some authority from my postal service counsel here at the table that we do believe that the collective bargaining agreement includes a grievance provision that would apply to Mr. Williams.

[00:31:50] Speaker 00:
But again, the entirety of the collective bargaining agreement is not in the joint appendix.

[00:31:54] Speaker 00:
And I honestly can't recall if it's

[00:31:57] Speaker 00:
record from the administrative proceeding below or not or if it's only a portion.

[00:32:02] Speaker 00:
So I can't say it with with definity.

[00:32:04] Speaker 04:
When an employee of the Postal Service confronts an adverse action and elects to retire or resign instead of appealing to the MSPB, does the agreement for resignation or retirement advise the employee that he or she is surrendering appeal rights with respect to the adverse action?

[00:32:27] Speaker 00:
I don't have that evidence in front of me to answer that question.

[00:32:32] Speaker 00:
This wasn't a resignation or retirement in those circumstances.

[00:32:36] Speaker 00:
This was Mr. Williams was an RCA carrier.

[00:32:40] Speaker 00:
He voluntarily applied for and was selected for employment in a new position.

[00:32:45] Speaker 00:
He switched jobs of his own volition.

[00:32:49] Speaker 04:
retirement or resignation.

[00:32:51] Speaker 04:
I mean, Covington is dealing with a retirement or resignation situation.

[00:32:58] Speaker 04:
Is that different in terms of the advice that the employee should receive from a job transfer situation?

[00:33:06] Speaker 00:
I believe it is.

[00:33:08] Speaker 00:
I think Covington is distinguishable.

[00:33:10] Speaker 00:
In the Covington context, there was an individual, if memory serves, who resigned, but it was

[00:33:18] Speaker 00:
wrapped up in a reduction in force.

[00:33:21] Speaker 00:
So that brings then into question whether or not the resignation is truly voluntary or not.

[00:33:27] Speaker 00:
That is not the case here.

[00:33:28] Speaker 00:
Mr. Williams was in a position as a Royal Carrier Associate.

[00:33:32] Speaker 00:
He could have continued in that position had he wanted to.

[00:33:35] Speaker 00:
He instead applied for what is what presumably appeared to be a better job as a CCA and he got it.

[00:33:41] Speaker 00:
Just like many federal employees will apply for other jobs for various any number of reasons.

[00:33:47] Speaker 00:
But that was his voluntary act.

[00:33:50] Speaker 00:
And from the Postal Service perspective, there's no basis in statute or regulation to impose a duty to advise an employee, an individual, who is looking to switch jobs, how their rights would change.

[00:34:05] Speaker 00:
As that duty to advise is espoused in Exum, it's also a duty that has no limits and is unworkable and has been unworkable in

[00:34:16] Speaker 00:
in practice, which is why we are seeking to have this court overrule that line of precedent.

[00:34:22] Speaker 00:
The duty to advise, as originally espoused by Exum, has only been limited by another MSPB decision, Park, to apply only to intra-agency transfers as opposed to inter-agency transfers from one agent to the other, which certainly is one helpful limitation on the doctrine.

[00:34:39] Speaker 00:
But the cases have been inconsistently applied as to whether or not

[00:34:44] Speaker 00:
The duty is only triggered if there was notice that the employee was under some misapprehension of their rights.

[00:34:53] Speaker 00:
Sometimes misapprehension is required.

[00:34:55] Speaker 00:
Sometimes it's not.

[00:34:57] Speaker 00:
There also would be no limits if the logic underlying the duty to advise and ex-em, if this court were to find it sound, well, then where does that duty to advise end?

[00:35:07] Speaker 00:
Does it end with just board appeal rights, or does it extend to

[00:35:12] Speaker 00:
health benefits, or retirement benefits, or other factors of employment.

[00:35:18] Speaker 00:
The list is endless, and the board has not adopted the duty to advise in any kind of cabined or reasonable parameters that would make it something that could even be applied.

[00:35:32] Speaker 00:
But that's an argument in the alternative.

[00:35:34] Speaker 00:
In the first instance, we argued that there is no basis in statute or regulation for EXIM's duty to advise in the first instance, which is why we're arguing it should be overruled.

[00:35:42] Speaker 01:
I want to ask you about the Chevron deference.

[00:35:45] Speaker 01:
Is there any impact at all on the Chevron deference and how it applies here, where the agency's definition came out three and a half years after Rodin?

[00:35:55] Speaker 00:
No, I don't believe so.

[00:35:56] Speaker 00:
As we argued in our brief, if law is not good law, it's not good law.

[00:36:03] Speaker 00:
So is it regrettable, perhaps, that Rodin was in force for as long as it was?

[00:36:09] Speaker 00:
Arguably, yes.

[00:36:12] Speaker 00:
to the extent the board has now corrected an error, even a long-time error.

[00:36:17] Speaker 00:
It was an error nonetheless, and jurisdiction is jurisdiction.

[00:36:20] Speaker 00:
It's defined by Congress.

[00:36:21] Speaker 00:
It's not defined by the board.

[00:36:22] Speaker 00:
It's not defined by voluntary employment agreements between federal agencies and individuals.

[00:36:28] Speaker 00:
The Congress has spoken.

[00:36:30] Speaker 00:
It has said that one year of continuous service is required.

[00:36:35] Speaker 00:
In the first instance, we argue that that word in the statute, continuous, has its plain, ordinary meaning to preclude any interruption in service.

[00:36:42] Speaker 00:
The regulation that OPM adopted several years later, in the first instance we have argued, is merely an implementation of a plain and unambiguous statute so you don't get past Chevron step one.

[00:36:56] Speaker 04:
But if we did, the OPM regulation would be entitled to deference?

[00:37:00] Speaker 00:
Yes, if you did find that the statute, that use of the statute's word continues.

[00:37:05] Speaker 04:
But not the board's decisions?

[00:37:06] Speaker 00:
But not the board's decisions, correct.

[00:37:08] Speaker 00:
By the time the issue gets to the board, the board is merely applying what is plain and unambiguous law as stated by the statute and regulation that it's implementing.

[00:37:20] Speaker 04:
Well, suppose the regulation were ambiguous.

[00:37:23] Speaker 04:
Does the board earn any Chevron deference?

[00:37:26] Speaker 00:
Not with respect to its own jurisdiction.

[00:37:29] Speaker 00:
It is entitled to some deference when it's applying rules of its own procedure.

[00:37:37] Speaker 00:
But in the context of jurisdiction, we would say that that's not something that would be entitled to deference.

[00:37:42] Speaker 00:
But again, we don't get there in this instance because the board was simply applying what were plain and unambiguous statutes and regulations.

[00:37:52] Speaker 04:
OK, thank you.

[00:37:54] Speaker 04:
Mr. Schoenhauer, a couple of minutes here.

[00:38:03] Speaker 05:
Two minutes.

[00:38:06] Speaker 05:
Thank you for the additional time.

[00:38:12] Speaker 05:
If what we're really looking at is a plain and unambiguous statute, then we shouldn't need to look any further than the statutory language itself, current continuous service.

[00:38:29] Speaker 05:
Here we have an appellant who served continuously in the postal service and understood himself to be serving continuously.

[00:38:36] Speaker 05:
the Merit Systems Protection Board in Rodin expressly interpreted the language continuous.

[00:38:43] Speaker 05:
Although on remand in this case, or in his companion win case, the board went back and said what we had been doing was an impermissible construction, and we weren't really interpreting the language continuous.

[00:38:58] Speaker 05:
Rodin itself says this is what we understand continuous to be.

[00:39:02] Speaker 05:
When there is an effective ongoing employment contract,

[00:39:05] Speaker 05:
And Judge Hughes, I acknowledge your point that going into a position.

[00:39:09] Speaker 02:
There is no such thing as an employment contract in federal government.

[00:39:12] Speaker 05:
And I do appreciate your position on that, Your Honor.

[00:39:15] Speaker 02:
Well, I don't think it's a position.

[00:39:16] Speaker 02:
I think it's the precedent in this court dealing with a lot of these issues that says federal employees served by appointment, not contract.

[00:39:25] Speaker 02:
And so that's the problem with Roe Dan is it relies on a faulty premise of law.

[00:39:31] Speaker 05:
uh... faulty in terms of whether there is a legally enforceable contract i believe the notion of the continuous employment contract in rodent was intended to be an equitable notion recognizing that there are government positions that naturally role into repeated occurrence positions as did the situation here where we have an employee that was placed in a functionally a leave status and something that i don't believe that uh... either party noted so let me ask you this is in your position that essentially

[00:40:01] Speaker 02:
any federal employee that serves in these non-career term positions that never go for a full year.

[00:40:11] Speaker 02:
Nevertheless, if they serve in them year after year, would get appeal rights to the MSPB.

[00:40:19] Speaker 05:
I believe that would be correct, Your Honor, consistent with the Board's view of seasonal employees.

[00:40:22] Speaker 02:
Are you aware of how many agency practices that would disrupt and how many agencies rely on OPMs

[00:40:30] Speaker 02:
regulation that allows a day break in service to render it an actual break in the continuous service?

[00:40:38] Speaker 05:
Given the long-standing precedent of rodent, I would suspect that this would not be highly disruptive, as many would have expected for approximately the last 30 years, that MSPB rights were not lost in such circumstances.

[00:40:51] Speaker 02:
When was COPM's regulation enacted?

[00:40:53] Speaker 02:
OPM's regulation came in in 1988, but even after that... So after that, agencies might have been relying on OPM's regulations for the last 30 years.

[00:41:03] Speaker 05:
Even during that time, as Your Honor is well aware, the MSPB continued to apply Rodin up through and including the Melvin decision in 1998, a decade later.

[00:41:11] Speaker 02:
20 years ago.

[00:41:14] Speaker 05:
20 years ago.

[00:41:15] Speaker 04:
Yeah.

[00:41:17] Speaker ?:
Okay.

[00:41:18] Speaker 04:
Thank you, Mr. Chairman.

[00:41:19] Speaker 04:
I thank our council.

[00:41:20] Speaker 04:
The case is submitted.

[00:41:21] Speaker 04:
That concludes our session for this afternoon.