Opinions / Panel Activity

Last month the Federal Circuit issued its opinion in Jones v. Merit Systems Protection Board, a case that attracted an amicus brief. In this case, the Federal Circuit reviewed a judgment of the Merit Systems Protection Board, which dismissed Jones’s appeal for lack of jurisdiction. In an opinion authored by Judge Lourie that was joined by Judges Bryson and Stark, the Federal Circuit affirmed the judgment of the Merit Systems Protection Board. The Federal Circuit held that the Board properly dismissed the case because the administrative judge “did not legally err or lack substantial evidence when reaching her determination that Jones was not an ‘employee’ as used in [5 U.S.C.] § 7513(d).” This is our opinion summary.

Judge Lourie began by highlighting the procedural and factual background of the case:

Jones began a term position as an Attorney, GS-0905-14, with the U.S. Department of Agriculture (‘USDA’) on April 15, 2018. . . . On August 4, 2019, he transferred without a break in service to the position of Attorney, GS-0905-14, with the Department of Justice’s (‘DOJ’) Bureau of Alcohol, Tobacco, Firearms and Explosives (‘ATF’). . . . At USDA, Jones primarily provided advice and counsel . . . [and] [h]e also litigated ensuing discrimination claims . . . . At ATF, Jones served as an advisor . . . [and] [h]e also served as the ‘alternate’ contracts attorney . . . . It soon became evident that Jones did not have the contract law experience that his supervisors had thought . . . . One of Jones’s supervisors informed him that they intended to recommend termination . . . . Jones resigned effective December 21, 2019. . . . Jones filed a complaint alleging that ATF had discriminated against him . . . . On March 30, 2021, ATF issued a Final Decision finding no evidence of discrimination and provided Jones with notice of his right to appeal the decision to the Board. . . . It was Jones’s burden to prove by a preponderance of the evidence that the Board had jurisdiction over his claim. . . . An Administrative Judge of the Board disagreed with Jones, holding in an Initial Decision that the Board lacked jurisdiction . . . because he had not shown that he was an ‘employee’ . . . . The AJ found that because Jones’s position at ATF ‘was not the same or similar to his prior position with USDA,’ his four months of work at ATF did not qualify him as an ‘employee’ . . . . Finding that Jones was not an ‘employee,’ the AJ dismissed Jones’s appeal for lack of jurisdiction.

Judge Lourie then began his analysis for the court by explaining how the panel reviews “the Board’s jurisdictional determinations de novo and its underlying factual findings for substantial evidence.” He went on to explain how, “[o]n appeal, ‘[t]he petitioner bears the burden of establishing error in the Board’s decision.’”

On the merits, Judge Lourie explained that, “[i]n determining similarity, it is essential to consider ‘the nature of the work performed in the two jobs’ and ‘the fundamental character of the work’ performed.” He then turned to Jones’s argument that the administrative judge “misapplied the law in determining whether or not he qualified as an ‘employee.’” Specifically, Judge Lourie noted how “Jones argues that the AJ looked for ‘exact interchangeability,’ rather than looking at the ‘fundamental character’ of the positions.” Judge Lourie, however, rejected this argument, noting “[t]he AJ’s decision shows that the AJ thoroughly considered the record evidence to determine the fundamental character of the two positions.” He concluded that “[t]he AJ’s finding that Jones was not an ‘employee’ as used in § 7513(d) . . . is . . . supported by substantial evidence.”

Judge Lourie explained how “[t]he sole dispute is . . . whether or not Jones’s two positions were ‘similar.’” He pointed out that the “distinguishing factor is that at USDA, Jones had been litigating already-filed employment discrimination cases, and that at ATF, he had been advising others on potential employment disciplinary actions.” Judge Lourie conceded “[t]here is no dispute that Jones’s two positions were both Attorney – Advisor, GS-0905-14 positions with a general focus on employment law,” but he explained how “those two facts alone are not dispositive of the nature and character of the work.” He noted how “the record supports the finding that the two positions involved different duties and required different skills, fundamentally affecting the nature and character of the work.”

As a result of this analysis, the Federal Circuit affirmed the Board’s judgment.