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Carrow v. Merit Sys. Prot. Bd., 10-3061

By FindLaw Staff on December 03, 2010 | Last updated on March 21, 2019

Lack of jurisdiction in orthotist's appeal of termination of his employment with the DVA

Carrow v. Merit Sys. Prot. Bd., 10-3061, concerned a challenge to the the Merit Systems Protection Board's dismissal of the appeal, on remand, for lack of jurisdiction, in petitioner's challenge to the termination of his employment as an orthotist-prosthetist with the Department of Veterans Affairs (DVA).  In affirming, the court held that, by statute, petitioner's position with the DVA did not carry Board appeal rights, as he does not qualify as an "employee" under 5 U.S.C. section 7511(a)(1)(C)(ii).  Further, any failure on the part of the DVA to provide full information to petitioner regarding the terms of his employment with the DVA did not give the Board jurisdiction over his appeal seeking reinstatement to his position at the DVA.


As the court wrote: "The critical statutory language, for present purposes, defines the term "employee" to include an individual in the excepted servi ce "who has completed 2 years of current continuois service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less."  Mr. Carrow acknowledges that at the time of his removal he did not qualify as an "employee" under that statutory language because he was serving under a temporary appointment not to exceed 13 months."

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