Argument Preview

Two cases being argued this month at the Federal Circuit attracted amicus briefs. One of these cases is Jones v. Merit Systems Protection Board. In it, the Federal Circuit will review a judgment of the Merit Systems Protection Board. The Board found it lacked jurisdiction over an appeal because the appellant failed to prove he was an “employee” within the meaning of the Civil Service Reform Act of 1978. This is our argument preview.

Kevin Jones alleges in his opening brief that the Department of Justice denied him due process “when it terminated him without advance notice and an opportunity to respond.” He asserts that, contrary to the MSPB’s decision, “as a preference eligible employee, [he] satisfied the definition of an ’employee’ with appeal rights.”

Jones argues he “completed one year of current continuous service in the same or similar position,” which met the requirements under “excepted service” within the statute. He contends the administrative law judge “took too narrow of a view” when finding his two positions were “not the ‘same or similar.'” According to Jones, both positions “had the same title, grade, and series” and shared similar duties. Jones alleges the judge’s analysis of the two positions was “inconsistent with well-settled Federal Circuit case law.” Additionally, Jones argues, his engagement in “voluntary and nominal training” during the start of his position should not have been dispositive because, “in order to find two positions dissimilar,” the training must be “extensive.” He asserts the Board also “erroneously relied” on non-controlling caselaw and “duties DOJ admitted Jones did not perform.”

In its response brief, the Merit Systems Protection Board argues that, “at the outset,” the Federal Circuit “lacks subject matter jurisdiction over this appeal because it is a ‘mixed case’ and Mr. Jones has not waived his discrimination claim.” It argues that, for this reason, the case should be transferred to the U.S. District Court for the District of Columbia. 

Alternatively, MSPB argues, “the AJ correctly dismissed Mr. Jones’s administrative appeal” because Jones failed to show by “preponderant evidence” that he qualified as an “employee” as defined in the relevant statute. The MSPB asserts he was not an employee because he hadn’t completed a year of “continuous service” in a similar position when he involuntarily resigned, and his subsequent job was not similar.

MSPB contends “substantial evidence” supports that the two positions were indeed dissimilar. It points to the record and testimony, which it claims established that the “knowledge, skills, and abilities” required to perform each position differed. Specifically, it alleges Jones purchased “reference books on dispensary case law” and acquired other training he found “necessary for his performance” in his new and dissimilar position. Additionally, MSPB argues that, even if the skills required were similar, the positions are not the same or similar if performed in “substantively different fields.”

In his reply brief, Jones begins by arguing that two positions are considered similar for purposes of the statute when they are “positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications.” He argues his positions were the same or similar because “he utilized the same skill set in both positions.” Additionally, Jones claims, his duties in both positions “overlapped significantly” to the extent that the DOJ did not require him to attend training before or when beginning his position. Moreover, he argues, the Board’s decision finding that his work at the Department of Agriculture required “greater knowledge of skills” is inaccurate and “oversimplifies the work [he] performed at the DOJ.” He reiterates that the AJ and the Board’s reliance on his “voluntary training” in their decisions is incorrect, and he contends his positions shared more in common than “just the practice of law.” Finally, Jones matinaints, contrary to MSPB’s argument, he resigned involuntarily after “[h]is supervisor gave him less than 24 hours to resign.” 

The National Treasury Employees Union filed an amicus brief in support of the petitioner and reversal. It argues the AJ didn’t use “reasoned decision-making” when it refused to consider the “fundamental character” of Jones’s past positions and failed to use “the standard set forth by” the Office of Personnel Managment and the Federal Circuit. 

Oral argument will be heard on Thursday, February 8. We will continue to keep track of this case and report on any developments.