United States Court of Appeals
for the Federal Circuit
__________________________
SUSAN G. ROY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF JUSTICE,
Intervenor.
__________________________
2011-3107
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY0752100199-I-1.
__________________________
Decided: March 15, 2012
__________________________
THOMAS G. ROTH, of Mountain Lakes, New Jersey, ar-
gued for petitioner.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
ROY v. MSPB 2
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
MICHAEL P. GOODMAN, Trial Attorney, Civil Division,
United States Department of Justice, of Washington, DC,
argued for intervenor. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and REGINALD T. BLADES, JR., Assistant Direc-
tor.
__________________________
Before LOURIE, DYK, and PROST, Circuit Judges.
PROST, Circuit Judge.
Susan G. Roy appeals the decision of the Merit Sys-
tems Protection Board (“Board”), dismissing her appeal
for lack of jurisdiction. Because we agree with the Board
that Ms. Roy is not an “employee” under 5 U.S.C.
§ 7511(a)(1)(C)(ii), we affirm.
BACKGROUND
The relevant facts are undisputed. From January 2,
2000, until March 1, 2008, Ms. Roy worked in a perma-
nent position as an attorney in the Department of Home-
land Security (“DHS”) 1 . From March 2, 2008, until
November 8, 2008, she served in an excepted temporary
appointment as an Immigration Judge in the Department
of Justice (“DOJ”). The temporary appointment was for a
period not to exceed eighteen months and was meant to
allow for the completion of Ms. Roy’s background investi-
gation. Upon the completion of the background investiga-
1Ms. Roy was originally employed with the
Immigration and Naturalization Service, which later
became part of the DHS.
3 ROY v. MSPB
tion, on November 9, 2008, Ms. Roy started a permanent
excepted appointment as an Immigration Judge in the
DOJ. On April 23, 2010, the DOJ terminated Ms. Roy’s
appointment based on alleged misconduct.
Ms. Roy appealed the termination of her employment
to the Board, invoking 5 U.S.C. § 7511(a)(1)(C)(ii) as the
source of the Board’s jurisdiction. The administrative
judge determined, however, that Ms. Roy was not an
“employee” under § 7511(a)(1)(C)(ii) and could not assert a
right to appeal pursuant to it. The administrative judge
thus dismissed Ms. Roy’s appeal for lack of jurisdiction.
Ms. Roy petitioned the Board for review of the adminis-
trative judge’s decision. The Board denied Ms. Roy’s
petition for review, rendering the administrative judge’s
initial decision the final decision of the Board. This
appeal followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
The only question presented on appeal is whether the
Board correctly determined that it lacked jurisdiction to
entertain Ms. Roy’s appeal. That is a legal determination,
which we review de novo. See Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). The Board’s appel-
late jurisdiction is defined in 5 U.S.C. § 7701. Section
7701 provides,
An employee, or applicant for employment, may
submit an appeal to the Merit Systems Protection
Board from any action which is appealable to the
Board under any law, rule, or regulation.
5 U.S.C. § 7701(a) (emphasis added). The term “em-
ployee” is expressly defined in 5 U.S.C. § 7511. Thus, our
ROY v. MSPB 4
jurisdictional inquiry is limited to whether the Board
correctly determined that Ms. Roy is not an “employee”
under § 7511. We hold that it did.
Section 7511 defines various classes of employees, but
Ms. Roy only contends that she is an employee under
§ 7511(a)(1)(C)(ii). Subsection (C)(ii) covers an individual
in the excepted service who is not preference eligible and
who has completed 2 years of current continuous
service in the same or similar positions in an Ex-
ecutive agency under other than a temporary ap-
pointment limited to 2 years or less.
Id. § 7511(a)(1)(C)(ii). There is no dispute that at the
time of removal, Ms. Roy served in an excepted service
and was not preference eligible. 5 U.S.C. §§ 2102 (com-
petitive service); 2103 (excepted service); & 2108(3) (pref-
erence eligible). The only question is whether Ms. Roy
can satisfy the “current continuous service” requirement
of 5 U.S.C. § 7511(a)(1)(C)(ii). We hold that she cannot.
Section 7511(a)(1)(C)(ii) unambiguously states that
the individual must have “2 years of current continuous
service in the same or similar positions . . . other than a
temporary appointment limited to 2 years or less.” Id.
§ 7511(a)(1)(C)(ii) (emphases added). Two phrases in the
text of the statute are important to our analysis: “current
continuous” and “other than a temporary appointment.”
Id. The word “current” indicates that the removal date is
the key date for determining whether the continuity
requirement is satisfied. The word “continuous” indicates
that there cannot be a break in service. Thus, the phrase
“current continuous” indicates that in order to determine
the continuity requirement, we must look at the individ-
ual’s employment at the time of removal and determine
5 ROY v. MSPB
whether there has been a break in service during the two
years that immediately precede the removal date. More-
over, the phrase “other than a temporary appointment”
indicates that temporary appointments (limited to two
years or less) do not count toward the two-year current
continuous service requirement. Because at the time of
removal, Ms. Roy had served less than two years in a
permanent position, she is not an employee as
§ 7511(a)(1)(C)(ii) defines that term.
Ms. Roy, however, reads the statute differently. She
contends that she may satisfy the current continuous
service requirement by tacking two periods of service in
the same or similar permanent positions even though
they are separated by a period of temporary appointment,
so long as her employment in general was uninterrupted.
2 We disagree. Although Ms. Roy does not state it ex-
pressly, her reading of the statute would divide the two-
year current continuous requirement into two compo-
nents, one that can be satisfied by two years of continuous
service in either permanent or temporary positions, and
another that can be satisfied by a total of two years of
service in the same or similar permanent positions. In
other words, Ms. Roy suggests that there is a two-year
continuity requirement and a two-year permanent service
requirement, but that the two requirements may be
satisfied independently. The problem is that the statute
uses the term “2 years” only once, followed by the phrase
“of current continuous service . . . other than a temporary
appointment.” This language leaves no room to doubt
that the two-year continuity requirement must be satis-
2 The administrative judge did not determine
whether Ms. Roy’s positions as attorney and immigration
judge are “same or similar” under § 7511(a)(1)(C)(ii). For
the purpose of this appeal, we must assume that they are.
ROY v. MSPB 6
fied by service in the same or similar permanent positions.
That is, prior intervals of permanent service that are
separated from service at the time of removal by a period
of temporary service do not count toward the two-year
requirement, even if there is no break in service when one
considers both temporary and permanent positions.
Therefore, as we already explained, Ms. Roy cannot meet
the two-year current continuous service requirement of
§ 7511(a)(1)(C)(ii).
The three cases that Ms. Roy relies on do not advance
her argument. In Forest v. Merit Systems Protection
Board, 47 F.3d at 411, we held that the appellant was not
an employee under § 7511(a)(1)(C)(ii) because he had
served less than two years in a permanent position.
Forest did not address the issue presented here because
the appellant in that case had not served two years in the
same or similar permanent positions, even in the aggre-
gate. See id. at 410. Nor do we see any basis for Ms.
Roy’s reliance on Van Wersch v. Department of Health and
Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999).
The issue in Van Wersch was whether the right to appeal
under § 7511(a)(1)(C)(ii) is an alternative to the right to
appeal under § 7511(a)(1)(C)(i), or whether an individual
who does not meet the requirements of § 7511(a)(1)(C)(i)
is necessarily precluded from appealing under subsection
(C)(ii) as well. In holding that the two subsections are
mere alternatives, we said nothing about how the re-
quirement of subsection (C)(ii) should be satisfied; indeed,
“it [was] undisputed that Ms. Van Wersch me[t] [those]
requirements.” Id. Therefore, Van Wersch cannot guide
the interpretation of the requirements of
§ 7511(a)(1)(C)(ii). Finally, Ms. Roy’s reliance on Carrow
v. Merit Systems Protection Board, 564 F.3d 1359 (Fed.
Cir. 2009) (“Carrow I”), is also unpersuasive. Carrow I
addressed the involuntary waiver of appellate rights, not
7 ROY v. MSPB
whether the requirements of § 7511(a)(1)(C)(ii) were
actually met. Id. at 1366-67. Moreover, Carrow I re-
manded the case to the Board for further proceedings, id.
at 1367, and in a subsequent appeal we determined that
the Board indeed lacked jurisdiction. See Carrow v. Merit
Sys. Prot. Bd., 626 F.3d 1348, 1354 (Fed. Cir. 2010) (“Car-
row II”). Therefore, to the extent that Carrow I and
Carrow II have any application here, they do not support
Ms. Roy’s argument—they undermine it.
In sum, we hold that in order to be an employee
within 5 U.S.C. § 7511(a)(1)(C)(ii), the individual must
have served continuously for at least two years in the
same or similar permanent positions. Specifically, we
hold that the text of subsection (C)(ii) is clear and re-
quires that the continuity requirement apply to perma-
nent service, not employment in general. Because Ms.
Roy had served for less than two years in a permanent
position at the time of her removal, she is not an em-
ployee within § 7511(a)(1)(C)(ii). Thus, the Board cor-
rectly declined to exercise jurisdiction over Ms. Roy’s
appeal.
CONCLUSION
We affirm the Board’s dismissal of Ms. Roy’s appeal
for lack of jurisdiction.
AFFIRMED