Argument Recap

Earlier this month, the Federal Circuit heard oral argument in Jones v. Merit Systems Protection Board. We’ve been following because this case because it attracted an amicus brief. In this case, the Federal Circuit is reviewing 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. Judges Lourie, Bryson, and Stark heard the argument. This is our argument recap.

Stephen B. Pershing argued for Jones. He maintained the appeal “turns on the similarity of two jobs,” and he suggested Jones’s two positions were similar because they shared the same work and subject matter. In response, a judge asked if Pershing agreed that the administrative law judge “correctly understood the regulatory definition of ‘similarity.'” Pershing answered that he is not sure if she did. He argued the ruling indicates that, while not expressly stated, the administrative law judge may have been applying the old “interchangeability test” instead of looking to the “fundamental character of the job” as required under the relevant precedent.

A judge turned the argument to the standard of review. He asked what factual findings were “not supported by substantial evidence.” Pershing responded that the administrative law judge’s focus on Jones’s litigation and non-litigation work at the two jobs, which both involved employment law, “twisted the evidence” of the similarity of the positions. In response, a judge pointed out that one job’s duties related to discipline, while the other job’s responsibilities related to discrimination issues. He proposed that there is not “a whole lot of room for overlap” between the subject matter. Pershing disagreed, explaining that the positions are not as dissimilar as they may seem and share many underlying duties and skills. He argued that the relevant case law shows the magnitude of difference between positions must be more significant and said “you can’t just say they’re different; you have to calibrate how different.” 

Elizabeth W. Fletcher argued for the Merit Systems Protection Board. She contended “substantial evidence supports” the administrative law judge’s “finding that appellant’s position at the USDA litigating and advising on [Equal Employment Opportunity] cases was not similar in nature and character to his role at the [Bureau of Alcohol, Tobacco, Firearms and Explosives] assisting the agency with adjudicating employee discipline.” Fletcher argued this is so because the two jobs were “in district legal fields” with “different duties” that varied in their skill and ability requirements. 

One judge interjected, asking if the court should consider Jones’s “broad level of skills” because it appears he “had the skills and abilities for both jobs without requiring significant training.” Fletcher responded by pointing out it was the Board’s position that he did not have the requisite skills in contract law.

More than one of the judges suggested it did not appear that the administrative law judge relied on a lack of contract law experience in her decision. One judge asked whether Jones was removed for lack of performance in contract law. Fletcher answered that “his lack of candor” surrounding his expertise led to a proposal for his removal and eventual resignation. One judge asked if the government conceded that Jones was not asked about his contract law experience and that his predecessor had no contract law experience. Fletcher acknowledged that the prior employee did not have contract experience. She reiterated, however, that the “fundamental issue” is whether the two positions were substantially similar and “whether the duties performed were similar in nature and character and required substantially the same or similar qualifications.” Fletcher argued they were not. 

In his rebuttal, Pershing argued there are three reasons why the contract law requirement “falls short” of differentiating the positions. First, he argued, the contract law requirement was “peripheral” as an extra requirement that was “not near the core of his job duties. Second, Pershing asserted, the requirement was “occasional” because Jones did not have to use contract law often and “contingent” because Jones believed himself to be a “backup” with respect to contract law. Third, Pershing alleged, the record showed the next person hired for the job “had no contract experience at all.” 

We will continue monitoring this case and report on developments.