Number 137                    September 2000

COURT DECISIONS  |   FLRA   |   MSPB

Marc Miller v. Department of Transportation, DE-0752-00-0280-I-1, July 12, 2000

Where Congress retroactively grants appeal rights to the Merit Systems Protection Board (MSPB), the Board will take jurisdiction of otherwise untimely appeals. In the Wendell H. Ford Aviation Investment and Reform Act, Congress reversed itself and granted Board jurisdiction over appeals by Federal Aviation Administration (FAA) employees retroactive to April 1996.

This case derived from an interlocutory appeal in which the administrative judge certified the question of jurisdiction to the full Board. Mr. Miller worked for the FAA until removal for violation of an airport traffic regulation while driving a Government vehicle. Three and a half years later, on April 17, 2000, he filed an appeal with MSPB regarding his removal. The administrative judge allowed both parties to submit arguments on the issue of jurisdiction. At the time of the appellant's removal, Congress had rescinded Board jurisdiction over Chapter 75 actions taken against FAA employees. Subsequently, on April 5, 2000, Congress passed the Wendell H. Ford Aviation Investment and Reform Act. This Act reinstated Board jurisdiction over these actions. The appellant argued that Congress restored due process to FAA employees and specifically made the Act retroactively effective to March 31, 1996. The agency's defense stated that Congress had divested the Board of jurisdiction at the time of the action. Further, the agency considered the Ford Act to be applicable only to fiscal years after September 30, 1999. Despite the specific effective date of April 1, 1996, in the section addressing Board jurisdiction, the agency relied on the general applicability clause that established September 30, 1999, as the effective date. However, the agency presented no legislative history in support of its argument.

The Board held that the Ford Act applied to this case based on the retroactive provision found in section 307 that plainly stated it "shall take effect on April 1, 1996." It rejected the agency's argument because to ignore the specific date set by Congress would contravene Congress' intent. The Board examined numerous court decisions in arriving at its holding in this case. Having determined that the Board had jurisdiction to hear the case, the Board returned the case to the Denver Field Office for further adjudication.