                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                    2007-3231


                           AUDREY MARIE ROBINSON,

                                                          Petitioner,

                                         v.

                          DEPARTMENT OF THE ARMY,

                                                          Respondent.



      Wesley Martin McAuley, of Montgomery, Alabama, argued for petitioner.

       Courtney E. Sheehan, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were Jeanne E. Davidson, Director, and Todd M.
Hughes, Deputy Director. Of counsel was Meredyth D. Cohen, Attorney.


Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit



                                      2007-3231

                            AUDREY MARIE ROBINSON,

                                                             Petitioner,

                                          v.

                           DEPARTMENT OF THE ARMY,

                                                             Respondent.


   Petition for review of the Merit Systems Protection Board in AT315H050880-B-1.

                          ___________________________

                          DECIDED: February 25, 2008
                          ___________________________


Before SCHALL, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.

                                      DECISION

      The Merit Systems Protection Board held that it lacked jurisdiction over Audrey

Marie Robinson’s appeal following the termination of her employment with the

Department of the Army. We affirm.

                                   BACKGROUND

      Ms. Robinson was hired in June 2000 on a temporary appointment as a

purchasing agent with the Department of the Air Force. She served in that capacity in a
series of temporary appointments, none of which exceeded one year in duration. In

early 2003, the Department of the Army issued a job opportunity announcement for a

permanent position as a Contract Specialist.      The announcement stated that the

position was open to all permanent career/career conditional employees serviced by the

regional personnel advisory center, Army employees with competitive status, and

Department of Defense employees having a career or career conditional appointments.

The position was not open to temporary employees.

       Even though she was a temporary employee, Ms. Robinson applied for the

position.   On her resume, Ms. Robinson listed her current employment but did not

indicate whether her position was temporary or permanent. In response to a question

about her current career status, she checked both the “temporary” and “permanent”

career status boxes.

       Notwithstanding that her temporary position made her ineligible for the position

according to the announcement, Ms. Robinson was selected for the position, and she

reported for duty on May 18, 2003. Two days later, on May 20, 2003, Ms. Robinson

received a call informing her that she had been erroneously appointed because she had

no prior federal employment other than as a temporary employee. Ms. Robinson was

told that her appointment would be changed to a 30-day emergency temporary

appointment and the position would be re-advertised. She was told that the position

could be re-advertised in a manner that would make Ms. Robinson eligible if she took

and passed the civil service examination. Ms. Robinson, however, told her supervisor

that she expected a permanent position, not a temporary appointment, and she left the




2007-3231                                  2
position, not returning to work after May 21, 2003. The agency treated her action as a

resignation with an effective date of May 21, 2003.

      Ms. Robinson appealed to the Merit Systems Protection Board from what she

considered an improper termination of her permanent position.         The administrative

judge assigned to her case ruled that Ms. Robinson was appointed to a permanent

position but was in a probationary period at the time of her termination. Because she

was terminated during her probationary period based on an error in the appointment

process, the administrative judge concluded that she was entitled to the procedural

protections, such as written notice and an opportunity to respond, that are set forth in 5

C.F.R. § 315.805. Although she was not given those rights, the administrative judge

found that the denial of those rights constituted harmless error, because it was

undisputed that she was not eligible for appointment to the position. The administrative

judge therefore denied Ms. Robinson’s appeal.

      On her petition for review, the full Board reopened the appeal on its own motion.

The Board analyzed the case differently. In the Board’s view, there was a substantial

question whether the Board had jurisdiction over Ms. Robinson’s appeal in two

respects.   First, the Board noted that the agency had treated her separation as a

resignation and that she had not sought to show that the resignation was involuntary. If

she could not show that the resignation was involuntary, the Board would not have

jurisdiction over the appeal. Second, the Board suggested that in light of her prior

position, Ms. Robinson might not qualify as an “employee” under 5 U.S.C. § 7511 and

therefore would not be entitled to pursue an appeal with the Board from the adverse




2007-3231                                   3
action against her. The Board remanded the case to the administrative judge to make

determinations on both of those jurisdictional issues.

      On remand, the administrative judge ruled that Ms. Robinson was not an

“employee” under 5 U.S.C. § 7511 and that the Board therefore lacked jurisdiction over

her appeal. The administrative judge explained that Ms. Robinson’s prior service as a

temporary employee did not qualify her as an employee under 5 U.S.C.

§ 7511(a)(1)(A)(ii), and that she would qualify as an “employee” within the meaning of

section 7511 only if she was a “preference eligible” employee. Because Ms. Robinson

is not a “preference eligible” employee, the administrative judge found that she was not

an “employee” entitled to appeal to the Board.

      Ms. Robinson now petitions for review by this court.

                                      DISCUSSION

      Ms. Robinson contends that she was an “employee” because she was appointed

to a non-temporary competitive service position and was not serving a probationary

period. See 5 U.S.C. § 7511(a)(1)(A)(i) (defining “employee” in part as an “individual in

the competitive service who is not serving a probationary or trial period under an initial

appointment”). The government points out that Ms. Robinson raised this issue for the

first time before the Board in her second petition for review. Previously, she had argued

that she was an “employee” because she had “completed 1 year of current continuous

service under other than a temporary appointment limited to 1 year or less.” 5 U.S.C.

§ 7511(a)(1)(A)(ii). In fact, the government points out, earlier in the litigation she had

conceded through counsel that she did not qualify as an employee under clause (i) of

section 7511(a)(1)(A).   The government therefore contends that Ms. Robinson has




2007-3231                                   4
waived her right to now argue that the Board has jurisdiction over her appeal because

she is an employee under clause (i). In addition, because Ms. Robinson previously

contended that she was a probationary employee at the time that her appointment was

terminated, the government contends that she should not now be allowed to argue that

she was not a probationary employee at that time.

       While there is substantial force to the government’s arguments regarding the

inconsistencies in Ms. Robinson’s position before the Board and in this court, we

nonetheless exercise our discretion to address the merits of her claim. On the merits,

we hold that the Board correctly concluded that Ms. Robinson failed to show that she

was an “employee” entitled to take an appeal to the Merit Systems Protection Board.

       First, it is clear that her temporary appointments did not provide the one year of

continuous service required under clause (ii) of section 7511(a)(1)(A).        That clause

specifically states that the service must be “other than a temporary appointment limited

to 1 year or less.”     Because she had previously worked exclusively under such

appointments, she is not entitled to “employee” status under that clause.

       Second, even if Ms. Robinson’s mistaken appointment made her the lawful

incumbent of a permanent appointment for the two days before the agency discovered

the mistake in the appointment process, she was, as a matter of law, serving a one-year

probationary period during her tenure in that position. See 5 C.F.R. § 315.801(a)(1)

(“The first year of service of an employee who is given a career or career-conditional

appointment under this part is a probationary period when the employee . . . [w]as

appointed from a competitive list of eligibles . . . .”). Ms. Robinson’s suggestion that the

agency waived the probationary term because it did not mention it in the letter regarding




2007-3231                                    5
her appointment is incorrect, as the agency lacks authority to waive that requirement.

See Phillips v. Dep’t of Hous. & Urban Dev., 44 M.S.P.R. 48, 52 (1990). Nor is the

agency required to inform an employee who is appointed for the first time to a career

position that her status is initially that of a probationary employee. Park v. Dep’t of

Health & Human Servs., 78 M.S.P.R. 527, 534-35 (1998); Phillips, 44 M.S.P.R. at 52.

Accordingly, we agree with the Board that Ms. Phillips was, at best, in probationary

status at the time her appointment was revoked and thus was not an “employee” under

section 7511. For that reason, the Board correctly held that she was not entitled to

appeal to the Board from the adverse action of removal under the authority of 5 U.S.C.

§ 7513(d).




2007-3231                                 6
