Regina E. Lee v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINA E. LEE, DOCKET NUMBER
Appellant, DA-0752-15-0388-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 15, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Regina E. Lee, DeSoto, Texas, pro se.
Laura J. Carroll, Esquire, Saint Albans, Vermont, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective March 16, 2008, the agency converted the appellant from a term
appointment to an excepted-service appointment as a GS-9 Adjudication Officer
under the Federal Career Intern Program (FCIP). 2 Initial Appeal File (IAF),
Tab 10 at 15-16. The Standard Form 50 (SF-50) documenting her FCIP
appointment indicated that her appointment was not to exceed 2 years and that,
upon satisfactory completion of the internship, she “may be noncompetitively
converted to a career or career‑conditional appointment.” Id. at 16. By letter
dated March 5, 2010, the agency informed the appellant that her FCIP
appointment would end effective March 15, 2010, and that she would not be
converted to a competitive service position. 3 IAF, Tab 9 at 6-7. The letter stated
that, because she did not have prior career or career‑conditional status, the
2
The FCIP was abolished effective March 1, 2011. Recruiting and Hiring Recent
Graduates, Exec. Order No. 13,562, 75 Fed. Reg. 82,585, 82,588 (Dec. 27, 2010).
3
The March 5, 2010 letter replaced a letter that the appellant received on February 16,
2010, also advising her of the expiration of her appointment. IAF, Tab 9 at 4‑7.
3
expiration of her FCIP appointment represented the termination of her current
Federal service. Id. at 6.
¶3 Over 5 years later, on May 21, 2015, the appellant appealed her termination
to the Board and requested a hearing. 4 IAF, Tab 1. The administrative judge
informed the appellant of her burden to establish jurisdiction over a termination
upon the expiration of a FCIP appointment and ordered her to show cause why
her appeal should not be dismissed for lack of jurisdiction. 5 IAF, Tab 14. After
considering the appellant’s response, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction without holding the
requested hearing. IAF, Tab 16, Initial Decision (ID). The appellant has filed a
petition for review of the initial decision, the agency has responded in opposition,
and the appellant has replied to the agency’s response. Petition for Review (PFR)
File, Tabs 1, 3-4.
¶4 Appointments under the FCIP automatically expire at the end of the intern’s
tour of duty on the last day of her internship, i.e., the day before the 2‑year
anniversary date of the appointment, unless the agency takes affirmative steps to
4
The record reflects that, prior to filing this Board appeal, the appellant unsuccessfully
challenged her termination upon the expiration of her FCIP appointment through the
equal employment opportunity complaint process. IAF, Tab 5 at 58-60, Tab 8 at 5.
5
The administrative judge originally assigned to this appeal also issued orders on
jurisdiction and timeliness and directed the appellant to submit evidence and argument
amounting to a nonfrivolous allegation of jurisdiction and showing that her appeal was
timely filed or that good cause existed for the filing delay. IAF, Tab 2 at 2-5, Tab 3.
Both parties responded. IAF, Tabs 5, 8-10, 12. The first order on jurisdiction did not
provide the appellant with the complete jurisdictional burden applicable to her
termination upon the expiration of her FCIP appointment, instructing her only of her
burden to show that she was an employee with Board appeal rights pursuant to 5 U.S.C.
§ 7511. IAF, Tab 2 at 2-5. As discussed below, an employee appointed under the FCIP
must make additional showings to establish Board jurisdiction over her termination
when her FCIP appointment expires. Nonetheless, this adjudicatory error did not
prejudice the appellant because she was later advised of her correct burden of proof.
IAF, Tab 14; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(explaining that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
4
extend the appointment or convert it to the competitive service. See Rivera v.
Department of Homeland Security, 116 M.S.P.R. 429, ¶ 10 (2011). If the intern is
not converted at the end of the internship period, then her FCIP internship
appointment generally terminates with no further right to Federal employment.
Id.; Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶ 6 (2010).
¶5 Because an FCIP intern’s termination upon the expiration of her
appointment merely carries out the terms of the appointment, the termination is
generally not an adverse action appealable to the Board. Scull, 113 M.S.P.R. 287,
¶ 7. However, the Board has recognized an exception to this general rule. An
FCIP intern may establish jurisdiction over her termination upon the expiration of
her FCIP appointment by showing by preponderant evidence that: (1) she held a
career or career-conditional appointment in the same agency immediately prior to
her FCIP appointment; (2) her failure to complete the internship successfully was
for reasons unrelated to misconduct or suitability; and (3) she is an “employee”
within the meaning of 5 U.S.C. § 7511. Id., ¶ 17.
¶6 Here, the administrative judge found that it was undisputed that the
appellant served under a term appointment prior to entering the FCIP and that,
because a term appointment is not a career or career-conditional appointment, the
appellant failed to make a nonfrivolous allegation that she met the first
jurisdictional element. ID at 3 (citing 5 C.F.R. § 315.201). Thus, he concluded
that the appellant could not meet the exception to the general rule that a
termination upon expiration of a FCIP appointment is not appealable to the Board
and dismissed the appeal for lack of jurisdiction. ID at 3.
¶7 On review, the appellant challenges the administrative judge’s
determination that the Board lacks jurisdiction over this appeal, arguing that: she
was an employee under 5 U.S.C. § 7511 and was not serving a probationary
period while she occupied the FCIP internship; she successfully completed her
internship; she had a reasonable expectation that she would be converted to a
career or career-conditional appointment at the end of her internship; and the
5
agency violated her due process rights. PFR File, Tab 1 at 4-17, Tab 4 at 4-15.
Even if true, however, these assertions provide no basis to disturb the initial
decision. 6
¶8 As the administrative judge correctly determined, the undisputed
documentary evidence shows that the appellant is unable to establish the first
jurisdictional element set forth above because she did not hold a career or career‑
conditional appointment with the agency immediately prior to her FCIP
appointment. See Rivera, 116 M.S.P.R. 429, ¶ 15. Rather, the record reflects that
she held a term appointment under tenure group III in the competitive service.
IAF, Tab 10 at 15; see Rivera, 116 M.S.P.R. 429, ¶ 15 (citing 5 C.F.R.
§ 351.501(b) for the proposition that tenure group III is reserved for employees
who lack career or career-conditional status, such as those on term appointments
and 5 C.F.R. § 315.201(a) for the proposition that an individual employed in the
competitive service for other than temporary, term, or indefinite employment is
appointed as a career or career-conditional employee). Because the appellant did
not hold a career or career-conditional appointment in the agency immediately
prior to her FCIP appointment, she was not entitled to placement when the agency
decided not to convert her appointment. See Rivera, 116 M.S.P.R. 429, ¶ 15.
Therefore, as the administrative judge correctly found, the Board lacks
jurisdiction over the appellant’s termination appeal. See id. Additionally,
6
Although not relevant to the dispositive issue here, we find unavailing the appellant’s
contention that she had a reasonable belief that her internship would be converted to a
permanent position. As noted above, the SF-50 documenting her FCIP appointment
indicated that her appointment “may” be noncompetitively converted to a career or
career‑conditional appointment upon satisfactory completion of the internship. IAF,
Tab 10 at 16. Moreover, the record reflects that, prior to her FCIP appointment, the
agency required the appellant to review and sign an “Acknowledgment Form Conditions
of Employment,” which explained that, upon satisfactory completion of the internship,
her appointment “may be made permanent in the competitive service,” but that her
“placement in the competitive service is neither promised, guaranteed, nor an
entitlement.” IAF, Tab 5 at 37 (emphasis added). The appellant signed the
acknowledgment form indicating that she understood and accepted the conditions of the
FCIP appointment on January 10, 2008. Id. at 38.
6
because the Board lacks jurisdiction over the appeal, we lack jurisdiction to hear
her claim that the agency violated her due process rights. See id., ¶ 16.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
7
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.