NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3231
AUDREY MARIE ROBINSON,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Wesley Martin McAuley, of Montgomery, Alabama, argued for petitioner.
Courtney E. Sheehan, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were Jeanne E. Davidson, Director, and Todd M.
Hughes, Deputy Director. Of counsel was Meredyth D. Cohen, Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3231
AUDREY MARIE ROBINSON,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Petition for review of the Merit Systems Protection Board in AT315H050880-B-1.
___________________________
DECIDED: February 25, 2008
___________________________
Before SCHALL, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
The Merit Systems Protection Board held that it lacked jurisdiction over Audrey
Marie Robinson’s appeal following the termination of her employment with the
Department of the Army. We affirm.
BACKGROUND
Ms. Robinson was hired in June 2000 on a temporary appointment as a
purchasing agent with the Department of the Air Force. She served in that capacity in a
series of temporary appointments, none of which exceeded one year in duration. In
early 2003, the Department of the Army issued a job opportunity announcement for a
permanent position as a Contract Specialist. The announcement stated that the
position was open to all permanent career/career conditional employees serviced by the
regional personnel advisory center, Army employees with competitive status, and
Department of Defense employees having a career or career conditional appointments.
The position was not open to temporary employees.
Even though she was a temporary employee, Ms. Robinson applied for the
position. On her resume, Ms. Robinson listed her current employment but did not
indicate whether her position was temporary or permanent. In response to a question
about her current career status, she checked both the “temporary” and “permanent”
career status boxes.
Notwithstanding that her temporary position made her ineligible for the position
according to the announcement, Ms. Robinson was selected for the position, and she
reported for duty on May 18, 2003. Two days later, on May 20, 2003, Ms. Robinson
received a call informing her that she had been erroneously appointed because she had
no prior federal employment other than as a temporary employee. Ms. Robinson was
told that her appointment would be changed to a 30-day emergency temporary
appointment and the position would be re-advertised. She was told that the position
could be re-advertised in a manner that would make Ms. Robinson eligible if she took
and passed the civil service examination. Ms. Robinson, however, told her supervisor
that she expected a permanent position, not a temporary appointment, and she left the
2007-3231 2
position, not returning to work after May 21, 2003. The agency treated her action as a
resignation with an effective date of May 21, 2003.
Ms. Robinson appealed to the Merit Systems Protection Board from what she
considered an improper termination of her permanent position. The administrative
judge assigned to her case ruled that Ms. Robinson was appointed to a permanent
position but was in a probationary period at the time of her termination. Because she
was terminated during her probationary period based on an error in the appointment
process, the administrative judge concluded that she was entitled to the procedural
protections, such as written notice and an opportunity to respond, that are set forth in 5
C.F.R. § 315.805. Although she was not given those rights, the administrative judge
found that the denial of those rights constituted harmless error, because it was
undisputed that she was not eligible for appointment to the position. The administrative
judge therefore denied Ms. Robinson’s appeal.
On her petition for review, the full Board reopened the appeal on its own motion.
The Board analyzed the case differently. In the Board’s view, there was a substantial
question whether the Board had jurisdiction over Ms. Robinson’s appeal in two
respects. First, the Board noted that the agency had treated her separation as a
resignation and that she had not sought to show that the resignation was involuntary. If
she could not show that the resignation was involuntary, the Board would not have
jurisdiction over the appeal. Second, the Board suggested that in light of her prior
position, Ms. Robinson might not qualify as an “employee” under 5 U.S.C. § 7511 and
therefore would not be entitled to pursue an appeal with the Board from the adverse
2007-3231 3
action against her. The Board remanded the case to the administrative judge to make
determinations on both of those jurisdictional issues.
On remand, the administrative judge ruled that Ms. Robinson was not an
“employee” under 5 U.S.C. § 7511 and that the Board therefore lacked jurisdiction over
her appeal. The administrative judge explained that Ms. Robinson’s prior service as a
temporary employee did not qualify her as an employee under 5 U.S.C.
§ 7511(a)(1)(A)(ii), and that she would qualify as an “employee” within the meaning of
section 7511 only if she was a “preference eligible” employee. Because Ms. Robinson
is not a “preference eligible” employee, the administrative judge found that she was not
an “employee” entitled to appeal to the Board.
Ms. Robinson now petitions for review by this court.
DISCUSSION
Ms. Robinson contends that she was an “employee” because she was appointed
to a non-temporary competitive service position and was not serving a probationary
period. See 5 U.S.C. § 7511(a)(1)(A)(i) (defining “employee” in part as an “individual in
the competitive service who is not serving a probationary or trial period under an initial
appointment”). The government points out that Ms. Robinson raised this issue for the
first time before the Board in her second petition for review. Previously, she had argued
that she was an “employee” because she had “completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less.” 5 U.S.C.
§ 7511(a)(1)(A)(ii). In fact, the government points out, earlier in the litigation she had
conceded through counsel that she did not qualify as an employee under clause (i) of
section 7511(a)(1)(A). The government therefore contends that Ms. Robinson has
2007-3231 4
waived her right to now argue that the Board has jurisdiction over her appeal because
she is an employee under clause (i). In addition, because Ms. Robinson previously
contended that she was a probationary employee at the time that her appointment was
terminated, the government contends that she should not now be allowed to argue that
she was not a probationary employee at that time.
While there is substantial force to the government’s arguments regarding the
inconsistencies in Ms. Robinson’s position before the Board and in this court, we
nonetheless exercise our discretion to address the merits of her claim. On the merits,
we hold that the Board correctly concluded that Ms. Robinson failed to show that she
was an “employee” entitled to take an appeal to the Merit Systems Protection Board.
First, it is clear that her temporary appointments did not provide the one year of
continuous service required under clause (ii) of section 7511(a)(1)(A). That clause
specifically states that the service must be “other than a temporary appointment limited
to 1 year or less.” Because she had previously worked exclusively under such
appointments, she is not entitled to “employee” status under that clause.
Second, even if Ms. Robinson’s mistaken appointment made her the lawful
incumbent of a permanent appointment for the two days before the agency discovered
the mistake in the appointment process, she was, as a matter of law, serving a one-year
probationary period during her tenure in that position. See 5 C.F.R. § 315.801(a)(1)
(“The first year of service of an employee who is given a career or career-conditional
appointment under this part is a probationary period when the employee . . . [w]as
appointed from a competitive list of eligibles . . . .”). Ms. Robinson’s suggestion that the
agency waived the probationary term because it did not mention it in the letter regarding
2007-3231 5
her appointment is incorrect, as the agency lacks authority to waive that requirement.
See Phillips v. Dep’t of Hous. & Urban Dev., 44 M.S.P.R. 48, 52 (1990). Nor is the
agency required to inform an employee who is appointed for the first time to a career
position that her status is initially that of a probationary employee. Park v. Dep’t of
Health & Human Servs., 78 M.S.P.R. 527, 534-35 (1998); Phillips, 44 M.S.P.R. at 52.
Accordingly, we agree with the Board that Ms. Phillips was, at best, in probationary
status at the time her appointment was revoked and thus was not an “employee” under
section 7511. For that reason, the Board correctly held that she was not entitled to
appeal to the Board from the adverse action of removal under the authority of 5 U.S.C.
§ 7513(d).
2007-3231 6