Falling Down a Rabbit Hole

By on May 25, 2006 in Current Events with 0 Comments

In a rather bizarre decision, the Merit Systems Protection Board determined that it had no jurisdiction over a probationary separation appeal, but managed to reopen the case and reverse the initial decision, overturning the probationary separation. Neat trick. (Gadsden, Ernest A. v. Department of State, AT-315H-05-0817-I-1, 2006 MSPB 129, May 12, 2006.

The following facts are taken from the Board’s decision:

The State Department gave Mr. Gadsden a competitive service, career-conditional appointment to a GS-07 Financial Management Specialist position, subject to a one-year probationary period (effective July 11, 2004). A little over 8 months later (March 20, 2005), the agency put Gadsden on leave without pay (LWOP) for 60 days.

 A Standard Form 50 was issued when he returned to duty (May 20, 2005), stating that his probationary period had been extended to reflect the excess time he was in a non-pay status. The extension added about a month to his probationary period (until August 9, 2005).

The agency notified Gadsden on July 8, 2005 that he was being terminated during his probationary period, effective July 12, 2005.

He appealed to the Board, arguing that he was wrongfully terminated since the effective date was after the date his original probationary period expired. The Administrative Judge, because the MSPB has no jurisdiction over appeals from probationary separations, asked Gadsden to show evidence as to why the appeal was within the Board’s jurisdiction. He argued that “he had completed his probationary period because he had completed one year of continuous service without an interruption of more than 30 days.”

Not surprisingly, the agency responded that the excess LWOP had resulted in an extension of his probationary period, the termination was accomplished during his probation, and therefore the Board had no jurisdiction.

The AJ agreed with the agency and dismissed the appeal for lack of jurisdiction.

Gadsden took his case to the full MSPB arguing that the agency had no legal authority to extend his probationary period because he had never formally requested to be placed on LWOP, as required by agency regulations. The agency countered that there was no dispute that Gadsden had indeed been in a nonduty, nonpay status for 60 days.

First, as to whether Gadsden’s probationary period had been properly extended, the Board agreed with the AJ that it had. It was proper to extend his probation because of the extended nonduty, nonpay status.

However, citing a Federal Circuit decision (McCormick v. Department of the Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002)), the Board decided that Gadsden was an employee for purposes of appeal rights to the Board. Citing 5 U.S.C. section 7511(a)(1)(A)(ii), the Board determined that because he has “completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less,” Gadsden may appeal his removal.

The Board then determined that the 60 day LWOP status, while it did factor into causing an extension of Gadsden’s probationary period, it did not keep him from meeting the “current continuous service” requirement for purposes of Board jurisdiction over his appeal.

That, to many readers, will appear to be a contradiction.

The Board went on to find that because Gadsden is an “employee,” the agency violated his constitutional right to due process by processing his removal as a probationary separation. He was entitled to full adverse action procedures. It ordered the agency to cancel the separation, and retroactively restore him to his position.

The State Department must have found itself wondering if it had fallen down a rabbit hole…not to mention regretting that it had not effected Gadsden’s separation before the original probationary period expired.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.