Appealed from: Merit Systems Protection Board
Before Michel, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.
FRIEDMAN, Senior Circuit Judge.
The Department of Transportation promoted the petitioner, an air traffic controller, to supervisor, subject to a one-year probationary period. Upon concluding that the petitioner had not performed his supervisory duties properly, the agency cancelled his promotion and he reverted to his lower grade nonsupervisory position. The Merit Systems Protection Board (Board) dismissed his appeal from that action for lack of jurisdiction, because the action took place during the petitioner's one-year probationary period. We affirm.
A. On October 7, 1989, the petitioner Collins, an air traffic controller, was temporarily promoted to a supervisory position at the air traffic control tower where he worked, the period of that promotion not to go beyond December 30, 1989. On December 7, 1989, Mary Young, the air traffic control manager at the tower, selected Collins to be the supervisor. She informed her superior of the action, and nine other persons "READ & INITIAL[ED]" her memorandum. Effective December 31, 1989, the agency extended Collins' temporary promotion to and including March 10, 1990. Each of these temporary promotions was reflected in a Standard Form 50 "Notice of Personnel Action."
Collins was permanently promoted to the supervisory position, as shown in a Standard Form 50 approved on March 19, 1990. That form stated that the effective date of the promotion was March 11, 1990, and that the promotion was "subject to completion of a 52 week probationary period for assignment to supervisory/managerial position beginning 03/11/90."
On September 10, 1990, Ms. Young informed Collins that he had been promoted to a supervisory position on December 31, 1989, subject to a one-year probationary period that was "intended to bridge the gap between perceived potential and actual performance, and to give the flexibility to return an employee to the nonsupervisory position without undue formality," and notified him that his performance during his "supervisory probationary period . . . has been unsatisfactory due to your inadequate performance in the supervisory performance standards listed below." The notice then described in detail the deficiencies in Collins' performance and stated that in view of these deficiencies and Collins' failure to correct them despite counseling and Discussions, she reassigned Collins, effective October 21, 1990, to his former, lower-grade, nonsupervisory position "in order to promote the efficiency of the service." This demotion was reflected in a Standard Form 50 approved October 22, 1990.
B. On appeal to the Board from Collins' demotion, the administrative Judge dismissed the appeal for lack of jurisdiction. The administrative Judge pointed out:
According to the regulations at 5 C.F.R. § 315.908, a employee who is returned to his former position after failing to satisfactorily complete his supervisory probationary period has no appeal right to the Board unless he alleges that the agency action was based on partisan political [sic] reasons or marital status.
Noting that Collins "made no allegation that his termination was based on partisan political reasons or marital status," the administrative Judge rejected Collins' argument that "he completed his probationary period on October 7, 1990 and, thus, the agency's action in removing him without affording him the procedural protections mandated by statute is reversible on the basis of harmful procedural error. The appellant argued that his service in the Supervisory ATC position during his temporary promotion to that position, beginning on October 8, 1989, counts toward completion of his supervisory probationary period." The administrative Judge held that agency regulation Order 3400.10A(43)(e)
clearly provided that time served in a temporary appointment is not creditable towards the completion of the supervisory probationary period. Thus, the time served by the appellant in the temporary promotion cannot count towards the completion of his supervisory probationary period in the Supervisory ATC position. I find the record shows that the appellant was terminated from his Supervisory ATC position during his probationary period.
On review of the administrative Judge's decision, the Board concluded that Collins' "arguments in support of his contention that his service in a temporary promotion to the position of Supervisory ATC satisfied his probationary requirement constitute mere disagreement with the administrative Judge's findings on that issue," which "do not warrant full review of the record by the Board." The Board rejected Collins' "alternative jurisdictional argument, i.e., that the agency's action was procedurally defective and hence had 'no legal effect,'" which the administrative Judge had not addressed, because
the pertinent regulation, 5 C.F.R. § 315.908, provides that an employee who is returned to his former position after failing to satisfactorily complete his supervisory probationary period has no appeal right to the Board unless he alleges that the agency action was based on partisan political reasons or his marital status. Procedural irregularity on the agency's part in effecting such an action does not alter these regulatory provisions, so as to give an employee the right to a Board appeal that he otherwise would not have. ...