James Ramos v. Department of Justice, SF-315H-01-0499-I-1, September 30, 2003

The Merit Systems Protection Board has held that an employee may waive his statutory right to appeal an action in a last-chance settlement agreement. An individual in the appellant's circumstances may waive any right to appeal when he accepts a position subject to a probationary period. The appellant is bound by the terms of the employment contract he signed, which served as the basis for his appointment to the position.

The appellant began his Federal civilian service in March 1998 as a Border Patrol Agent for the agency. Subsequently, he responded to a vacancy announcement for a Deportation Officer position with the agency and was selected and appointed to the position effective March 11, 2001. The Standard Form 50 documenting the appointment indicates that the appointment was subject to a one-year probationary period. However, before the one year expired, the agency terminated him. The administrative judge dismissed his appeal for lack of jurisdiction, finding that, as a competitive service probationary employee, he had no right of appeal to the Board under 5 USC §7511(a) (1) (A).

In his petition for review, the appellant argued that he was not required to serve a new probationary period because he was appointed by transfer. In the appellant's case, however, he was not transferred. Under 5 CFR §210.102(18), a "transfer" means "a change of an employee without a break in service of one full workday, from a position in one agency to a position in another agency." The appellant's two positions were both with the Immigration and Naturalization Service (INS), i.e., the same component of the same agency. Therefore, the action did not meet the definition of a transfer.

The agency also selected the appellant from a register. An employee who is selected from a register for a career-conditional appointment in the competitive service is required to serve a new one-year probationary period, even if he has already completed a probationary period in another position.

Under certain circumstances, an employee's prior service may be credited towards completion of the new probationary period. For the prior service to be credited, the employee must show that the prior service was: (1) rendered immediately preceding the appointment; (2) performed in the same agency; (3) performed in the same line of work; and (4) completed with no more than one break in service of less than 30 days.

The appellant argued that his service as a Border Patrol Agent should have counted towards the completion of his probationary period. There was no dispute that the appellant's prior service was immediately before the appointment at issue in his appeal, that he performed that service for the same agency, and that it was without a break in service. The question was whether the GS-9 Border Patrol Agent position and the GS-5 Deportation Officer position were in the same line of work. The "same line of work" has been defined as work that is so similar that the positions require the same qualifications and the nature of the work would place them in the same competitive level for reduction in force purposes. In this case, the two positions were in different grade levels and classification series and did not occupy the same competitive level.

The Board also agreed with the administrative judge that a comparison of the position descriptions for the two positions showed that the qualifications or knowledge required by the two positions was different.

In Edwards v. Department of Justice, 86 MSPR 404 (2000), the Board recognized an exception to the general rule that a competitive service employee serving a probationary period has no right of appeal to the Board. In that case, the Board found jurisdiction when an employee accepted another position with the same agency but was not informed that by doing so he would lose his right to appeal to the Board. The Board held that the limited exception did not apply in the appellant's case. In fact, the record in appellant's case contained a signed copy of a September 15, 2000, Probationary Period Agreement which stated as follows:

I, James Ramos, understand that upon entrance on duty to the position of Deportation Officer, GS-5, I will be required to begin a new probationary period in accordance with Immigration & Naturalization policy and Office of Personnel Management regulations as put forth in the code of Federal Regulations part 315-- Career and Career-Conditional Employment.

My rights and entitlements for adverse and disciplinary actions will be processed in accordance with the provisions of the code of Federal Regulations part 315.

The Board found that the document that the appellant signed constituted adequate notice that, by accepting the new position, the appellant would lose his right to appeal to the Board. The appellant argued that the notice predated his appointment by about six months and was ineffective. The administrative judge rejected this argument and the Board agreed. The agency gave the appellant the notice after he had been provisionally selected for the Deportation Officer position. The delay between the appellant's signing the agreement and his entry into the Deportation Officer position was the result of the required background check. The Board did not find that this delay rendered the notice ineffective.

The Board further found that this Probationary Period Agreement is significant for another reason. In McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), the Federal Circuit determined that an appellant meets the definition of "employee" at 5 USC §7511(a) (1) (A) for purposes of appeal rights before the Board if the appellant is "an individual in the competitive service (i) who is not serving a probationary or trial period under an initial appointment; or (ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less . . . ."

Notwithstanding the potential impact of the holding in McCormick on the appellant's appeal rights, the Board found, under the circumstances of this appeal, that the Board lacked jurisdiction. The appellant voluntarily signed the Probationary Period Agreement, which included a statement that he understood that he was required to serve a new probationary period and that his "rights and entitlements for adverse and disciplinary actions [would] be processed in accordance with the provisions of the code of Federal Regulations part 315."

Just as the Board and the Federal Circuit have held that an employee may waive his statutory right to appeal an action in a last-chance settlement agreement, an individual in the appellant's circumstances may also waive any right to appeal when he accepts a position subject to a probationary period. The administrative judge noted that it appeared the appellant decided to accept the new position and submit to a new probationary period because the Deportation Officer position had the potential of promotion to a higher grade level than his previous Border Patrol Agent position. The appellant did not allege that he misunderstood the language of the agreement, or that he was coerced into agreeing to the probationary period, or that the agency misrepresented the terms of his appointment. The Board held that the appellant was bound by the terms of the employment contract he signed, which was the basis for his appointment to the new position.

Thus, the Board found that they lacked jurisdiction over the appellant's termination during his probationary period.

Although it is not clear what impact the Board's decision in Ramos will have upon McCormick v. Department of Air Force, the Board has stated that an individual, in the circumstances specific to this case, may waive any right to appeal (i.e. full due process procedures and full MSPB appeal rights) when he accepts a position subject to a new probationary period.