United States Merit Systems Protection Board

Case Report for June 10, 2011

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: Rodolfo A. Rivera

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 57

Docket Number: SF-0752-09-0879-I-1

Issuance Date: May 31, 2011

Jurisdiction - Expiration of Federal Career Intern Program Appointment

The appellant petitioned for review of an initial decision that dismissed his termination appeal for lack of jurisdiction. In July 2007, the agency appointed the appellant to a position as an Applications Adjudicator using the Federal Career Intern Program (FCIP). This was a 2-year appointment in the excepted service with potential for noncompetitive conversion to a career or career-conditional appointment in the competitive service upon satisfactory completion of the internship. Prior to the end of the 2-year period, the agency issued the appellant a letter stating that his performance was not at an acceptable level of competence and that he would be separated when his FCIP appointment expired. The appellant was on leave at the time and did not receive the letter until after the expiration of the 2-year period. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant’s termination upon the expiration of his FCIP appointment was not an adverse action appealable to the Board, and that the fact that the appellant did not actually receive his termination notice until after the appointment expired was immaterial to the jurisdictional issue.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. An FCIP appointment automatically terminates upon its expiration unless the agency takes affirmative steps to extend the appointment or convert it to the competitive service. As the agency took no steps to extend the appellant’s FCIP appointment, his termination upon expiration of his FCIP appointment was not an appealable adverse action.

2. The appellant’s argument that the agency failed to provide him adequate training in his FCIP position, as required by 5 C.F.R.  213.3202(o)(9), is immaterial to the jurisdictional issue because it pertains only to the merits of his termination.

3. The Board noted that, although it generally lacks jurisdiction over the termination of an FCIP intern upon the expiration of his appointment, OPM’s regulation at 5 C.F.R.  213.3202(o)(6)(ii) provides an exception when, immediately prior to his FCIP appointment, the individual held a career or career-conditional appointment in the same agency, his failure to complete the internship successfully was for reasons unrelated to misconduct or suitability, and he is an “employee” with the meaning of 5 U.S.C.  7511. That exception does not apply in this case.

Appellant: John Mark Pickett

Agency: Department of Agriculture

Decision Number: 2011 MSPB 58

Docket Number: AT-0752-09-0944-I-1

Issuance Date: June 3, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Constitutional Issues – Due Process

The agency petitioned for review of an initial decision that reversed its removal action on the ground that the agency violated the appellant’s constitutional right to due process of law. The agency removed the appellant from his position as a Farm Loan Officer based on 3 charges of misconduct. On appeal, it was disclosed that the deciding official relied to some degree on a newspaper account of the appellant’s arrest in December 2006 for disturbing the peace, and on rumors that the appellant held his wife at gunpoint. Neither of these matters was included in the agency’s notice of proposed removal. Without addressing the merits of any of the charges, the administrative judge found that the agency had deprived the appellant of due process of law and ordered the agency to cancel the appellant’s removal and to restore him to his position. On review, the agency argued that the precedent on which the administrative judge relied applies only to cases involving ex parte information that a deciding official receives in relation to the underlying charges of misconduct, and does not apply to information that was only used as part of the penalty determination.

Holdings: The Board denied the agency’s petition for review and affirmed the initial decision:

1. Under Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999), when a deciding official receives new and material information by means of ex parte communication, “then a due process violation has occurred and the former employee is entitled to a new constitutionally correct removal procedure.”

2. Not every ex parte communication is a procedural defect so substantial and so likely to cause prejudice that it undermines the due process guarantee. The court in Stone identified 3 factors to consider, with the ultimate inquiry being whether the ex parte communication is “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.”

3. Subsequent to the court’s decision in Stone, the Board developed a line of precedent holding that, where an ex parte communication does not relate to the charge itself, but relates instead to the penalty, the Board would not consider such an error as a denial of due process of law, but would instead analyze the error by applying the harmful error standard in its analysis of penalty factors. In Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), however, the court rejected that line of precedent.

4. The administrative judge properly applied the Stone factors to determine that the ex parte information received by the deciding official constituted new and material information that was substantial and undermined the appellant’s procedural due process rights.



Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:

Espiritu v. Office of Personnel Management, No. 2010-3163 (June 8, 2011) (MSPB Docket No. SF-0831-09-0974-I-1) (affirming the Board’s decision, 114 M.S.P.R. 192 (2010), which affirmed judgments of OPM denying the appellant’s application for deferred retirement and his application to make a deposit to the Civil Service Retirement and Disability Fund)

Escudero v. Merit Systems Protection Board, No. 2011-3020 (June 9, 2011) (MSPB Docket No. DA-0752-10-0118-I-1) (affirming the Board’s decision, which dismissed the appellant’s petition for review as untimely filed without good cause shown for the delay)