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Miller v. United States and Department of Army

September 21, 1983


On Petition for Review of a Final Order of the Merit Systems Protection Board Docket No. PH07528110165.

Gibbons and Becker, Circuit Judges, and Weber,*fn* District Judge.

Author: Becker


BECKER, Circuit Judge.

In November 1980, respondent Department of the Army discharged petitioner Daniel J. Miller from his position as an Electrical Equipment Repairer Helper at the Tobyhanna, Pennsylvania Army Depot. The Army did so after discovering that Miller's college degree rendered him overqualified for that position under 38 U.S.C. § 3014 (1976). Miller appealed the discharge to the Merit Systems Protection Board (MSPB), which dismissed his appeal on jurisdictional grounds. The MSPB ruled that, because Miller's appointment was void ab initio, he was not an "employee" and thus had no statutory right of appeal to the MSPB. Because we do not agree that the MSPB lacked jurisdiction to entertain Miller's appeal, we will vacate the dismissal and remand to the MSPB for further proceedings.


The facts are essentially undisputed. On November 7, 1978, the Department of the Army appointed Miller as an Electronics Mechanic Helper. The appointment was temporary for a term not to exceed one year. A year later, on November 7, 1979, the Army reappointed Miller to the same position. Although this appointment was also for a temporary term of one year or less, on December 2, 1979, the Army, on its own initiative, converted Miller's appointment to one under the Vietnam Era Veterans Readjustment Act of 1974, 38 U.S.C. §§ 2011-2014 (1976) ("VRA"). This appointment, which superseded the temporary one, improved Miller's job status and benefits. Apparently relying on the benefits accompanying his new appointment, Miller and his wife obligated themselves on two loans to finance a $25,000 addition to their home.

In early September 1980, Miller applied for a GS-7 position at the Army Depot. In the course of reviewing this application, the Army realized that Miller had graduated from a four-year college. Although Miller had provided this information in his earlier applications, the fact apparently had escaped the Army's attention when it gave Miller his VRA appointment. The inattention, however, was significant, for VRA appointments are not available to those who have completed more than fourteen months of college education. 5 C.F.R. § 307.102(a)(2) (1982).*fn1

Unsure how to proceed upon discovering that Miller appeared ineligible for the position he then held, the Army requested advice from the Office of Personnel Management ("OPM"). OPM responded that, unless the Army were to request and obtain a "variation" from Government regulations to permit Miller to retain his position, the Army would have to discharge him.*fn2 The Army declined to request the "variation," and on November 20, 1980, advised Miller that he was to be "terminated" immediately.

Pursuant to 5 U.S.C. § 7701, Miller filed a timely appeal of his termination with the MSPB. After an initial hearing, the presiding official ruled in Miller's favor. The official held that Miller's termination was void because the Army had failed to show that it was necessary to "promote the efficiency of the service," as required by 5 U.S.C. § 7513 (1976). The presiding official therefore ordered the Army to reinstate Miller with back pay.

The Army, in turn, appealed the initial decision to the MSPB, see 5 C.F.R. § 1201.3 (1982), and the MSPB reversed. The MSPB, however, did not reach the merits. Rather, it ruled that Miller's appointment was void ab initio because he was ineligible for the position and he therefore had no statutory right of appeal to the MSPB. Miller then petitioned this Court pursuant to 5 U.S.C. § 7703(a)(1) (1976)*fn3 for review of the MSPB's dismissal.


The statutory scheme that is relevant to this appeal is relatively simple. Pursuant to Chapter 75, subchapter II of 5 U.S.C., an agency may remove an employee "only for such cause as will promote the effciency of the service," id. § 7513(a). In addition, an employee whom the agency proposes to remove is entitled to a variety of procedural rights. See id. § 7513(b), (c), (e). Finally, section 7513(d) provides that "an employee against whom action is taken under this section is entitled to appeal to the [MSPB] under section 7701 of this title."*fn4

On its face, the statutory scheme seems to confer upon Miller the right to appeal his dismissal to the MSPB. The MSPB held, however, and the Army argues here, that Miller's appointment to a VRA position was void ab initio and that he therefore never attained the status of employee. In particular, the MSPB relied in its opinion on the definition of ...

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