                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANNAMARIE R. FRANCIS,                           DOCKET NUMBER
                  Appellant,                         AT-0752-13-7722-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: January 13, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Daniel R. Schramm, Esquire, Chesterfield, Missouri, and David A. Cox,
             Esquire, Saint Louis, Missouri, for the appellant.

           William David Vernon, Esquire, Joint Base Andrews, Maryland, for the
            agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        Effective September 14, 2009, the appellant received an excepted service
     appointment in the Federal Career Intern Program (FCIP) as a Contract Specialist.
     See Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 2 (2013). The
     FCIP appointment was intended to continue for 2 years unless extended for an
     additional year. Id. Fourteen months later, on November 19, 2010, the agency
     terminated the appellant for failure to make satisfactory progress in the training
     program. Id.
¶3        The appellant filed a chapter 75 appeal with the Board but later requested
     that her appeal be treated as an individual right of action (IRA) appeal. Id., ¶ 3.
     The administrative judge denied corrective action under the Whistleblower
     Protection Act, and the appellant filed a petition for review. Id., ¶ 5. The Board
     dismissed the IRA appeal for lack of jurisdiction. Id., ¶ 13. However, because
     nothing in the record reflected that the appellant made a knowing and informed
     waiver of her chapter 75 appeal rights under 5 U.S.C. § 7121(g), the Board
     adjudicated the appellant’s appeal as both an IRA appeal and as a chapter 75
     appeal of what the agency characterized as her termination during her
                                                                                      3

     probationary period.      Id., ¶ 7, see Agoranos v. Department of Justice,
     119 M.S.P.R. 498, ¶ 16 (2013) (an employee who has been subjected to an action
     appealable to the Board and who alleges that he has been affected by a prohibited
     personnel practice other than a claim of discrimination under 5 U.S.C.
     § 2302(b)(1) may elect to pursue, inter alia, an appeal to the Board or a complaint
     with the Office of Special Counsel; however, an employee’s election of remedies
     will not be binding if it is not knowing and informed).
¶4        The Board noted that the agency maintained that it terminated the appellant
     during the probationary period of her FCIP appointment, precluding her from
     having Board appeal rights.      The Board found, however, that because the
     Standard Form (SF)-50 appointing the appellant provided that she was subject to
     a 1-year probationary period, and she was employed for more than 1 year, the
     appellant made a nonfrivolous allegation that she had completed her probationary
     period and was an employee under 5 U.S.C. § 7511(a)(1)(C)(i) with adverse
     action appeal rights to the Board.       Francis, 120 M.S.P.R. 138, ¶¶ 14-21.
     However, the Board took official notice of DOD 1400.25–M, which applied to
     Military Departments, and provided in relevant part that an FCIP appointment is
     subject to a 2–year probationary period. Francis, 120 M.S.P.R. 138, ¶ 21. The
     Board found that the record was not sufficiently developed to resolve the conflict
     regarding the length of the probationary period as documented on the appellant’s
     SF-50 and the length set forth in DOD 1400.25–M. Id.
¶5        The Board forwarded the chapter 75 appeal to the regional office for
     docketing and a determination of whether the full 2-year term of the appellant’s
     FCIP appointment constituted a probationary or trial period notwithstanding the
     notation on her SF-50. Id., ¶ 21. The Board indicated that, because the appellant
     had made a nonfrivolous allegation of jurisdiction, she was entitled to a
     jurisdictional hearing if she wanted. Id., ¶ 22; see Ferdon v. U.S. Postal Service,
     60 M.S.P.R. 325, 329 (1994). Pursuant to the Board’s order, the regional office
                                                                                               4

     docketed this appeal and provided the appellant a jurisdictional hearing. Initial
     Appeal File (IAF), Tabs 1, 13.
¶6         The administrative judge found that the agency appointed the appellant to
     the FCIP position in the National Security Personnel System (NSPS). IAF, Tab
     23, Initial Decision (ID) at 2. 2 However, before her separation and as a result of
     the elimination of the NSPS, 3 the agency converted her FCIP position to the
     General Schedule (GS) system. ID at 2. The administrative judge found that
     DOD 1400.25–M was not binding on the agency at the time of the appellant’s
     separation because, by its terms, the chapter in which this provision appeared was
     for the purpose of the NSPS. ID at 5. He found, however, that the Air Force Plan
     for the Defense Career Intern Program (hereafter “Air Force Plan”), effected in
     2001, was applicable to the appellant’s FCIP GS position at the time of her
     separation. 4 ID at 6. He also found that the Air Force Plan provided that the 2
     years an FCIP intern spends on the excepted appointment serve as the intern’s
     probationary period.      ID at 6.     The administrative judge further found that,
     despite the language included within the SF-50 documenting the appellant’s
     appointment, she failed to prove by preponderant evidence that her appointment
     was subject to a 1-year, as opposed to a 2-year, probationary or trial period. ID at
     7. Thus, he found that the appellant failed to prove that she had completed her
     probationary or trial period when the agency separated her 14 months after her
     appointment. ID at 7.


     2
       The particular program that the appellant was hired into was called the Copper Cap
     program; it is undisputed however, that the position was the agency’s equivalent of an
     FCIP position.
     3
       On October 28, 2009, the President signed into law the National Defense
     Authorization Act for Fiscal Year 2010, Pub. L. No. 111–84, 123 Stat. 2190, 2498,
     which repealed the statutory authority for the NSPS.
     4
       The administrative judge relied on the fact that the 2001 Air Force Plan was cancelled
     in 2013, after the appellant’s separation, and thus was in effect for GS positions until its
     cancellation. ID at 6.
                                                                                       5

¶7         Next, the administrative judge found that the appellant failed to prove that
     the doctrine of equitable estoppel precluded the agency from relying on any
     probationary period longer than that identified in the appointment SF-50. ID at 7.
     He found that the record showed that the SF-50s documenting the appointment of
     a number of FCIP interns incorrectly indicated that the appointments were subject
     to 1-year probationary periods. ID at 9. However, he found that the appellant
     failed to present sufficient circumstantial evidence to establish that it was more
     likely than not that the erroneous annotation on her SF-50 was more than a simple
     mistake resulting from possible negligence and failed to show that the erroneous
     annotation constituted affirmative misconduct. ID at 9-10. Thus, he found that
     the agency’s action was the termination of a probationary employee with no
     adverse action appeal rights to the Board, and the appeal must be dismissed for
     lack of jurisdiction. ID at 10.
¶8         It is well-settled that to terminate a person while that person is still a
     probationer the separation action must be effected prior to the end of the
     probationer’s tour of duty on the last day of probation, which is the day before
     the anniversary date of his appointment. See Scull v. Department of Homeland
     Security, 113 M.S.P.R. 287, ¶ 12 (2010). The dispositive issue in this appeal is
     whether the agency, in fact, terminated the appellant during her probationary
     appointment, as it intended. If it did, then the appellant has no statutory right to
     appeal the action but has only a limited regulatory right of review for reasons not
     advanced by the appellant in this case; that is, her termination was based on
     partisan political or marital status reasons. 5 C.F.R. § 315.806(a), (b).
¶9         In her petition for review, the appellant contends that the administrative
     judge erred in finding that the Air Force Plan, providing for a 2-year probationary
     period for FCIP employees, was applicable to her position. Petition for Review
     File, Tab 1. However, the appellant admits that “effective in the [Fiscal Year]
     2005 hiring cycle” her position was made part of the FCIP program, the program
                                                                                       6

      governed by the Air Force Plan. Id. at 15. Thus, the appellant’s position was
      subject to provisions governing the FCIP before she was hired in 2008. Id. at 15.
¶10        The appellant also contends that the administrative judge erred in relying on
      the Air Force Plan because the agency did not rely on it to argue that the
      appellant was serving a 2-year probationary period. As the appellant asserts, the
      agency relied primarily on DOD 1400.25–M, which provided for a 2-year
      probationary period for FCIP appointees under the NSPS.        The administrative
      judge properly found that DOD 1400.25–M was not binding on the agency at the
      time of the appellant’s separation because this provision was for the purpose of
      positions in the NSPS. However, the agency also submitted the Air Force Plan
      and the administrative judge properly considered it. In any event, that the agency
      did not rely on this submission in its arguments below is immaterial because the
      issue of the Board’s jurisdiction is always before the Board and may be raised sua
      sponte by the Board at any time during a Board proceeding.          See Bambl v.
      Department of the Treasury, 113 M.S.P.R. 55, ¶ 8 (2010). We agree with the
      administrative judge that the Air Force Plan was effective regarding FCIP
      positions in the GS system at the date of the appellant’s termination. We are
      persuaded that the Air Force Plan applied to GS positions after they were
      converted out of the NSPS by the fact that the Air Force Plan was effective until
      the agency reverted to the GS system, which occurred after the appellant’s
      termination. Further, the authority repealing the NSPS called for the conversion
      of all employees and positions under the NSPS to all aspects of the personnel
      system that applied prior to conversion to NSPS. See Ellis v. Department of the
      Navy, 117 M.S.P.R. 511, ¶ 2 (2012). Although the regulation relied on by the
      administrative judge is no longer in effect, it was in effect on the date of the
      appellant’s termination. The regulations in effect at the time that the agency took
      the action should apply in this appeal. See Hill v. Department of the Air Force,
      42 M.S.P.R. 187, 190 (1989).
                                                                                     7

¶11         The appellant also contends that the administrative judge erred in finding
      that the doctrine of equitable estoppel did not preclude the agency from relying
      on any probationary period longer than that identified in the appellant’s
      appointment SF-50.       Affirmative misconduct is a prerequisite for invoking
      equitable estoppel against the government.         See Perez Peraza v. Office of
      Personnel Management, 114 M.S.P.R. 457, ¶ 9 (2010). In addition, to invoke
      equitable estoppel against the government, the party claiming estoppel must have
      reasonably relied on the other party’s misrepresentation to his detriment;
      moreover, detrimental reliance requires evidence that the appellant’s position
      changed for the worse or that she relinquished a valuable right.     Id.; King v.
      Office of Personnel Management, 114 M.S.P.R. 181, ¶ 19 (2010). Thus, there are
      two elements that must be shown to prove a claim of equitable estoppel,
      affirmative misconduct and reasonable reliance on that misconduct.         Perez
      Peraza, 114 M.S.P.R. 457, ¶ 9.          Of particular relevance here, negligently
      providing misinformation does not constitute affirmative misconduct.     See id.,
      ¶ 10. We find that this rule is sufficient to resolve this case.
¶12         As the administrative judge found, the SF-50s documenting a number of
      interns in the appellant’s program indicated that these appointments were subject
      to a 1-year probationary period, and these SF-50s were authenticated by several
      human resource specialists at different Air Force bases. ID at 9. However, while
      this evidence established that the misinformation was widespread, only 15 percent
      of the interns received SF-50s inaccurately stating that they had a 1-year
      probationary period.       We agree with the administrative judge that this
      circumstantial evidence is insufficient to establish to a reasonable person,
      considering the record as a whole, that it is more likely than not that the
      erroneous annotation on the appellant’s SF-50 was more than a simple mistake
      resulting from possible negligence on the part of the agency employee who
      processed that document. ID at 9.
                                                                                        8

¶13         In sum, we conclude that the administrative judge properly found that the
      agency terminated the appellant during her 2-year probationary period and
      correctly dismissed the appeal for lack of jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States   Code,    at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
      Additional information is available at the court's website, www.cafc.uscourts.gov.
      Of particular relevance is the court's "Guide for Pro Se Petitioners and
      Appellants," which is contained within the court's Rules of Practice, and Forms 5,
      6, and 11.
            If you are interested in securing pro bono representation for your court
      appeal, you may visit our website at http://www.mspb.gov/probono for a list of
                                                                            9

attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
