Bobby Abernethy v. Patrick Donahoe, No. 12-1836 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1836 BOBBY R. ABERNETHY, Plaintiff - Appellant, v. PATRICK DONAHOE, Postmaster General, US Postal Service, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Norman K. Moon, Senior District Judge. (5:11-cv-30077-NKM-BWC) Submitted: November 16, 2012 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and November 21, 2012 HAMILTON, Senior Vacated and remanded by unpublished per curiam opinion. Bobby R. Abernethy, Appellant Pro Se. David Mountcastle, Kartic Padmanabhan, OFFICE OF THE ATTORNEY, Roanoke, Virginia, for Appellee. Lew, Rick A. UNITED STATES Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bobby R. Abernethy, a former employee of the United States Postal order granting contract Service ( USPS ), Defendant s action. The appeals motion district district dismiss to the his court court s breach dismissed of Abernethy s complaint based on the simple fact that . . . a federal statute provides that, with narrow exceptions that are not applicable here, USPS employees serve by appointment, and not by contract. Citing to 39 U.S.C. ยง 1001(b) (2006) ( Except as otherwise provided in this title, the Postal Service shall appoint all officers and employees of the Postal Service. ), and O Neal v. Donahoe, 802 F. Supp. 2d 709, 714 (E.D. Va. 2011) (collecting cases wherein breach of employment contract actions against the USPS were dismissed), the district court determined that claims that the USPS breached an employment contract are necessarily without merit. For the following reasons, we vacate and remand to the district court. Unlike the claim at issue in O Neal, and regardless of the fact that Abernethy was an appointed employee of the USPS, Abernethy alleged the existence and breach of a contract governing his compensation, rather than a contract governing his employment duration. (collecting cases employment contract See to O Neal, support that can 802 holding form 2 the F. Supp. that basis 2d at 714 there is no for a Postal employee s breach of contract action Service[,] where all of cases the discharge or failure to reinstate). against involved the an Postal unlawful It does not necessarily follow that because Abernethy could have been terminated at any time, the Defendant also had the right to alter his compensation if, as Abernethy alleges, there was a valid contract on that point. Accordingly, we vacate the district court s order and remand the matter to the district court for further proceedings. * We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. VACATED AND REMANDED * By this disposition, we intimate no appropriate resolution of Abernethy s claim. 3 view as to the
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