The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNAMARIE R. FRANCIS, DOCKET NUMBER
Appellant, AT-0752-13-7722-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: January 13, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel R. Schramm, Esquire, Chesterfield, Missouri, and David A. Cox,
Esquire, Saint Louis, Missouri, for the appellant.
William David Vernon, Esquire, Joint Base Andrews, Maryland, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and authorities, 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).
¶2 Effective September 14, 2009, the appellant received an excepted service
appointment in the Federal Career Intern Program (FCIP) as a Contract Specialist.
See Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 2 (2013). The
FCIP appointment was intended to continue for 2 years unless extended for an
additional year. Id. Fourteen months later, on November 19, 2010, the agency
terminated the appellant for failure to make satisfactory progress in the training
program. Id.
¶3 The appellant filed a chapter 75 appeal with the Board but later requested
that her appeal be treated as an individual right of action (IRA) appeal. Id., ¶ 3.
The administrative judge denied corrective action under the Whistleblower
Protection Act, and the appellant filed a petition for review. Id., ¶ 5. The Board
dismissed the IRA appeal for lack of jurisdiction. Id., ¶ 13. However, because
nothing in the record reflected that the appellant made a knowing and informed
waiver of her chapter 75 appeal rights under 5 U.S.C. § 7121(g), the Board
adjudicated the appellant’s appeal as both an IRA appeal and as a chapter 75
appeal of what the agency characterized as her termination during her
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probationary period. Id., ¶ 7, see Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶ 16 (2013) (an employee who has been subjected to an action
appealable to the Board and who alleges that he has been affected by a prohibited
personnel practice other than a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) may elect to pursue, inter alia, an appeal to the Board or a complaint
with the Office of Special Counsel; however, an employee’s election of remedies
will not be binding if it is not knowing and informed).
¶4 The Board noted that the agency maintained that it terminated the appellant
during the probationary period of her FCIP appointment, precluding her from
having Board appeal rights. The Board found, however, that because the
Standard Form (SF)-50 appointing the appellant provided that she was subject to
a 1-year probationary period, and she was employed for more than 1 year, the
appellant made a nonfrivolous allegation that she had completed her probationary
period and was an employee under 5 U.S.C. § 7511(a)(1)(C)(i) with adverse
action appeal rights to the Board. Francis, 120 M.S.P.R. 138, ¶¶ 14-21.
However, the Board took official notice of DOD 1400.25–M, which applied to
Military Departments, and provided in relevant part that an FCIP appointment is
subject to a 2–year probationary period. Francis, 120 M.S.P.R. 138, ¶ 21. The
Board found that the record was not sufficiently developed to resolve the conflict
regarding the length of the probationary period as documented on the appellant’s
SF-50 and the length set forth in DOD 1400.25–M. Id.
¶5 The Board forwarded the chapter 75 appeal to the regional office for
docketing and a determination of whether the full 2-year term of the appellant’s
FCIP appointment constituted a probationary or trial period notwithstanding the
notation on her SF-50. Id., ¶ 21. The Board indicated that, because the appellant
had made a nonfrivolous allegation of jurisdiction, she was entitled to a
jurisdictional hearing if she wanted. Id., ¶ 22; see Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994). Pursuant to the Board’s order, the regional office
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docketed this appeal and provided the appellant a jurisdictional hearing. Initial
Appeal File (IAF), Tabs 1, 13.
¶6 The administrative judge found that the agency appointed the appellant to
the FCIP position in the National Security Personnel System (NSPS). IAF, Tab
23, Initial Decision (ID) at 2. 2 However, before her separation and as a result of
the elimination of the NSPS, 3 the agency converted her FCIP position to the
General Schedule (GS) system. ID at 2. The administrative judge found that
DOD 1400.25–M was not binding on the agency at the time of the appellant’s
separation because, by its terms, the chapter in which this provision appeared was
for the purpose of the NSPS. ID at 5. He found, however, that the Air Force Plan
for the Defense Career Intern Program (hereafter “Air Force Plan”), effected in
2001, was applicable to the appellant’s FCIP GS position at the time of her
separation. 4 ID at 6. He also found that the Air Force Plan provided that the 2
years an FCIP intern spends on the excepted appointment serve as the intern’s
probationary period. ID at 6. The administrative judge further found that,
despite the language included within the SF-50 documenting the appellant’s
appointment, she failed to prove by preponderant evidence that her appointment
was subject to a 1-year, as opposed to a 2-year, probationary or trial period. ID at
7. Thus, he found that the appellant failed to prove that she had completed her
probationary or trial period when the agency separated her 14 months after her
appointment. ID at 7.
2
The particular program that the appellant was hired into was called the Copper Cap
program; it is undisputed however, that the position was the agency’s equivalent of an
FCIP position.
3
On October 28, 2009, the President signed into law the National Defense
Authorization Act for Fiscal Year 2010, Pub. L. No. 111–84, 123 Stat. 2190, 2498,
which repealed the statutory authority for the NSPS.
4
The administrative judge relied on the fact that the 2001 Air Force Plan was cancelled
in 2013, after the appellant’s separation, and thus was in effect for GS positions until its
cancellation. ID at 6.
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¶7 Next, the administrative judge found that the appellant failed to prove that
the doctrine of equitable estoppel precluded the agency from relying on any
probationary period longer than that identified in the appointment SF-50. ID at 7.
He found that the record showed that the SF-50s documenting the appointment of
a number of FCIP interns incorrectly indicated that the appointments were subject
to 1-year probationary periods. ID at 9. However, he found that the appellant
failed to present sufficient circumstantial evidence to establish that it was more
likely than not that the erroneous annotation on her SF-50 was more than a simple
mistake resulting from possible negligence and failed to show that the erroneous
annotation constituted affirmative misconduct. ID at 9-10. Thus, he found that
the agency’s action was the termination of a probationary employee with no
adverse action appeal rights to the Board, and the appeal must be dismissed for
lack of jurisdiction. ID at 10.
¶8 It is well-settled that to terminate a person while that person is still a
probationer the separation action must be effected prior to the end of the
probationer’s tour of duty on the last day of probation, which is the day before
the anniversary date of his appointment. See Scull v. Department of Homeland
Security, 113 M.S.P.R. 287, ¶ 12 (2010). The dispositive issue in this appeal is
whether the agency, in fact, terminated the appellant during her probationary
appointment, as it intended. If it did, then the appellant has no statutory right to
appeal the action but has only a limited regulatory right of review for reasons not
advanced by the appellant in this case; that is, her termination was based on
partisan political or marital status reasons. 5 C.F.R. § 315.806(a), (b).
¶9 In her petition for review, the appellant contends that the administrative
judge erred in finding that the Air Force Plan, providing for a 2-year probationary
period for FCIP employees, was applicable to her position. Petition for Review
File, Tab 1. However, the appellant admits that “effective in the [Fiscal Year]
2005 hiring cycle” her position was made part of the FCIP program, the program
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governed by the Air Force Plan. Id. at 15. Thus, the appellant’s position was
subject to provisions governing the FCIP before she was hired in 2008. Id. at 15.
¶10 The appellant also contends that the administrative judge erred in relying on
the Air Force Plan because the agency did not rely on it to argue that the
appellant was serving a 2-year probationary period. As the appellant asserts, the
agency relied primarily on DOD 1400.25–M, which provided for a 2-year
probationary period for FCIP appointees under the NSPS. The administrative
judge properly found that DOD 1400.25–M was not binding on the agency at the
time of the appellant’s separation because this provision was for the purpose of
positions in the NSPS. However, the agency also submitted the Air Force Plan
and the administrative judge properly considered it. In any event, that the agency
did not rely on this submission in its arguments below is immaterial because the
issue of the Board’s jurisdiction is always before the Board and may be raised sua
sponte by the Board at any time during a Board proceeding. See Bambl v.
Department of the Treasury, 113 M.S.P.R. 55, ¶ 8 (2010). We agree with the
administrative judge that the Air Force Plan was effective regarding FCIP
positions in the GS system at the date of the appellant’s termination. We are
persuaded that the Air Force Plan applied to GS positions after they were
converted out of the NSPS by the fact that the Air Force Plan was effective until
the agency reverted to the GS system, which occurred after the appellant’s
termination. Further, the authority repealing the NSPS called for the conversion
of all employees and positions under the NSPS to all aspects of the personnel
system that applied prior to conversion to NSPS. See Ellis v. Department of the
Navy, 117 M.S.P.R. 511, ¶ 2 (2012). Although the regulation relied on by the
administrative judge is no longer in effect, it was in effect on the date of the
appellant’s termination. The regulations in effect at the time that the agency took
the action should apply in this appeal. See Hill v. Department of the Air Force,
42 M.S.P.R. 187, 190 (1989).
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¶11 The appellant also contends that the administrative judge erred in finding
that the doctrine of equitable estoppel did not preclude the agency from relying
on any probationary period longer than that identified in the appellant’s
appointment SF-50. Affirmative misconduct is a prerequisite for invoking
equitable estoppel against the government. See Perez Peraza v. Office of
Personnel Management, 114 M.S.P.R. 457, ¶ 9 (2010). In addition, to invoke
equitable estoppel against the government, the party claiming estoppel must have
reasonably relied on the other party’s misrepresentation to his detriment;
moreover, detrimental reliance requires evidence that the appellant’s position
changed for the worse or that she relinquished a valuable right. Id.; King v.
Office of Personnel Management, 114 M.S.P.R. 181, ¶ 19 (2010). Thus, there are
two elements that must be shown to prove a claim of equitable estoppel,
affirmative misconduct and reasonable reliance on that misconduct. Perez
Peraza, 114 M.S.P.R. 457, ¶ 9. Of particular relevance here, negligently
providing misinformation does not constitute affirmative misconduct. See id.,
¶ 10. We find that this rule is sufficient to resolve this case.
¶12 As the administrative judge found, the SF-50s documenting a number of
interns in the appellant’s program indicated that these appointments were subject
to a 1-year probationary period, and these SF-50s were authenticated by several
human resource specialists at different Air Force bases. ID at 9. However, while
this evidence established that the misinformation was widespread, only 15 percent
of the interns received SF-50s inaccurately stating that they had a 1-year
probationary period. We agree with the administrative judge that this
circumstantial evidence is insufficient to establish to a reasonable person,
considering the record as a whole, that it is more likely than not that the
erroneous annotation on the appellant’s SF-50 was more than a simple mistake
resulting from possible negligence on the part of the agency employee who
processed that document. ID at 9.
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¶13 In sum, we conclude that the administrative judge properly found that the
agency terminated the appellant during her 2-year probationary period and
correctly dismissed the appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.