A recent appeals court decision (Lee v Merit Systems Protection Board (CAFC No. 2017-1232, 5/25/17)) supports the MSPB ruling that it cannot review a challenge by a federal intern whose agency denied her a career service appointment when her internship was over.
As the court decision explains, Regina Lee was appointed to a Federal Career Intern Program (FCIP) in 2008, after having served about six years in various federal term appointments. Her internship was with the U.S. Citizenship and Immigration Services at the Department of Homeland Security (DHS). At the end of the two-year internship, DHS notified Lee that it would not convert her to a competitive service appointment. Instead she was automatically terminated when the internship ran out. (Opinion p. 2)
Lee appealed to the Merit Systems Protection Board (MSPB), but that body ruled that it had no jurisdiction over the expiration of an internship and the resulting termination. Undaunted, she took her case to the appeals court, which recently affirmed MSPB’s ruling. In short, the court explains: “An agency’s decision not to convert an FCIP intern to competitive service is not an ‘adverse action’ appealable to the Board….because the implementing regulations clearly explain that interns have no right to further federal employment after their appointments expire….” (p. 3)
Ms. Lee argued that the Executive Order creating the FCIP in 2000 does confer upon her the right to further federal employment after the internship expires. Not so, rules the court, finding EO 13,162 and the implementing regulations consistent in that both indicate an intern “may be granted” an appointment at the end of the internship, “not that it shall be granted.” (p. 5) While she had the right to be considered for a permanent appointment, that is not the same as the “automatic right to be converted to competitive civil service status.” (p. 5)
If this plain reading is not enough, then consider, the court says, this explicit wording in the EO that it “does not create any right or benefit, substantive or procedural, enforceable in law or equity, by a party against the United States, its agencies, its officers or employees, or any other person.” (quoted at p. 5)
In short, once Ms. Lee completed her internship, there was simply no guarantee she would get a federal job out of the experience. When she did not, there was no appeal route to the MSPB since she did not suffer an adverse action.
