Temporary or Permanent: What's In a Name?

An Air Force temporary employee who tried to parlay her temporary status into permanent career status when she was erroneously selected for a permanent Army position ends up out of a job all together now that the appeals court has ruled against her. (Robinson v. Department of the Army, C.A.F.C. No. 2007-3231 (nonprecedential), 2/25/08) The facts are taken from the court’s decision.

For about 3 years Robinson served in various temporary appointment positions with the Air Force, each less than one year. When the Army announced a permanent contract specialist job, Robinson applied for it even though she was not eligible—the announcement specifically stated that it was not open to temporary employees.

Robinson’s application originally left blank whether her current position was temporary or permanent. When Army asked about her status, Robinson checked both the "temporary" and "career" boxes on the form. Apparently overlooking the ambiguity, the agency selected Robinson and she reported for duty. Two days later the agency discovered the error and told Robinson that her appointment would be converted to a 30-day emergency appointment while the agency re-advertised the job. The agency also offered to give Robinson the opportunity to apply for the job if she took and passed the civil service exam. However, Robinson walked off the job after telling her supervisor that she wanted a permanent job, not a temporary one. The agency treated this as a resignation. (pp. 2-3)

Robinson appealed to the Merit Systems Protection Board arguing she had been improperly terminated from her permanent position. The Board concluded it did not have jurisdiction over her appeal since as a temporary she did not meet the definition of an employee for the purpose of filing an appeal. Robinson took her case to the Federal Circuit. (p. 3)

She argued to the court that her appointment to the Army’s permanent position—even though in error—gave her status as an employee for appeal purposes. (p. 4)

Not so, ruled the Federal Circuit in affirming the Board’s decision. The court concluded that her various temporary appointments with Air Force did not give Robinson employee status. As for her erroneous appointment to the permanent position, at best Robinson was serving the required one-year probationary period, was in the job for only 2 days, and therefore still would not have employee status for purposes of being able to file an appeal with MSPB. (pp. 5-6)

Maybe it would have been a good idea to take the Army up on its offer to take and pass the civil service exam so she could be eligible to apply when the job was re-announced.

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

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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.

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