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Temporary or Permanent: What's In a Name?

By Susan Smith

Friday, March 14, 2008

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

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 (Robinson v. Department of the Army, C.A.F.C. No. 2007-3231 (nonprecedential), 2/25/08) The facts are taken from the court's decision.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.

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Readers' Comments

  • AND there are usually reasons why a position must be announced under merit promotion, i.e. no "outside hire" positions (can't add any more bodies) for example. If the division is at staffing ceiling, they can't take on any new people and a temp to a perm is often a "new" person when counting FTEs. ...
    Posted: March 19, 2008 11:08 AM
  • Where exactly do you work? Based on the lack of knowledge displayed it certainly is not in the HR or EEO fields. Before pretending, try studying the law and actually get to know the rules and regulations. The reason this person did not succeed is because she thought, as do so many others, tha...
    Posted: March 18, 2008 9:17 AM
  • Ha, ha, ha. Worker, now you are trying to be a shrink, implying that I am an angry person. You don't even know me. If you did, you would know that I am a very nice person. However, you are missing the point. There are sometimes policies that do not make sense and if people like me did not quest...
    Posted: March 18, 2008 8:44 AM

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