Appeal Rights of Career Interns

The Merit Systems Protection Board (MSPB," or "the Board") recently clarified the grounds on which an employee in the Federal Career Intern Program (FCIP) can claim Board jurisdiction over the appeal of his separation at the expiration of his internship. Scull v. Department of Homeland Security, Docket No. SF-0752-09-0565-I-1 (February 19, 2010).

The employee in this case was serving in a non-temporary appointment in the competitive service before he was converted to a new position with the same agency under the FCIP. The new position was an excepted-service appointment expected to last two years. The position also had the potential to convert to a career or career-conditional appointment, provided the employee successfully completed the internship.

The employee's FCIP appointment was scheduled to expire on April 15, 2009. On April 14, 2009, while the employee was on leave, the agency issued him a "Notification of Non-conversion," and terminated his employment. The agency left phone messages with the employee and his girlfriend, and sent the notification by overnight and certified mail and email.

The employee appealed his separation to the MSPB, and argued that because he did not actually receive notification of his non-conversion until April 18, 2009, he was a career employee when the agency improperly terminated him. The Board found that the employee's separation was comparable to the termination of a probationary employee in the sense that the agency was required to effect the probationer's termination prior to the end of his tour of duty.

However, the Board also found that it is not required that the probationer receive the termination notice prior to the effective date of the termination, if the agency made diligent and reasonable efforts to provide notification to the employee. The Board concluded that the agency had made reasonable efforts to inform the employee of his non-conversion and termination, such that the termination was effective on April 14, 2009, before the end of his FCIP internship. The Board found that it therefore did not have jurisdiction over the appeal of the employee's separation based on the fact that he did not receive notification of the separation before its effective date.

However, the Board noted that OPM's regulations provide an exception to the general rule that an FCIP intern's federal employment terminates upon expiration of his internship. Specifically, under 5 C.F.R. § 213.3202(o)(6)(ii), an FCIP intern separated from service upon expiration of his internship may establish Board jurisdiction over his appeal of that action by a showing that 1) immediately prior to his FCIP appointment, he held a career or career-conditional appointment in the same agency; 2) his failure to complete the internship successfully was for reasons unrelated to misconduct or suitability; and 3) he is an "employee" as defined by federal statute.

The Board found that there was no dispute that the employee qualified as an "employee." The Board also found that although the employee had not definitively shown that he also met the first two jurisdictional requirements, he had not been properly apprised of his legal burden to establish the above three requirements by a preponderance of the evidence, and therefore remanded the case to give the employee the opportunity to show Board jurisdiction over his appeal.

This case confirms that it is possible for FCIP interns to appeal their separation at the expiration of their FCIP appointment, where they held career positions in the same agency immediately before the FCIP appointment, and the failure to complete the internship successfully is not because the employee engaged in misconduct or was found unsuitable for federal employment. The Board's decision here also reiterates that appellants must be given proper notice of their legal burden to establish Board jurisdiction over their appeals.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com