[00:00:00] Speaker 04:
298 Wells versus MSPB.

[00:00:31] Speaker 04:
Mr. Eisenberg, please proceed when you're ready.

[00:00:48] Speaker 03:
Your honors, and so please the court.

[00:00:51] Speaker 03:
The petitioner, Elaine Wells, was told that she did not retain her job because she did not meet her licensing requirements.

[00:01:00] Speaker 03:
However, the record shows that not only did she meet her licensing requirements, but that she was told by the agency she met those licensing requirements.

[00:01:11] Speaker 03:
To argue otherwise fails against anything that's on the record.

[00:01:15] Speaker 03:
I believe it is simple as that.

[00:01:16] Speaker 03:
I open to any questions that this court may have.

[00:01:22] Speaker 01:
Well, just on the record question, my understanding is after the fact,

[00:01:30] Speaker 01:
There is this email from Mr. Liu that says, now that you have the Georgia license, I won't have to co-sign your notes.

[00:01:45] Speaker 01:
That's after the fact.

[00:01:46] Speaker 01:
Am I right that there's no evidence that indicates that beforehand that she was told, even though she worked in Jacksonville,

[00:01:59] Speaker 01:
that a Georgia license would suffice for the job and not a Florida without a, she didn't need to get a Florida license.

[00:02:07] Speaker 03:
Your Honor, I believe at the moment the record currently does not reflect that, but I will note that we were not allowed to continue our discovery.

[00:02:15] Speaker 03:
We initiated discovery per the order.

[00:02:17] Speaker 03:
However, when the agency failed to provide us their response in a timely fashion, we moved for sanctions.

[00:02:23] Speaker 03:
But before that happened, the matter was dismissed.

[00:02:26] Speaker 03:
I believe it was a procedural error for the board below.

[00:02:29] Speaker 03:
to dismiss the case without having completed discovery.

[00:02:34] Speaker 01:
And as a legal matter, what do you think you have to show in order to say that the board had jurisdiction to determine whether she was properly or improperly terminated?

[00:02:52] Speaker 01:
It feels a little bit chicken and egg situation.

[00:02:59] Speaker 01:
As things stood when she was terminated, she was in fact not converted into a permanent employee, unless you were right about your automatic legal conversion, which is separate and apart from possible factual evidence that she had been told this was enough and whatnot.

[00:03:22] Speaker 01:
But I'm a little confused, I guess, about how to

[00:03:29] Speaker 01:
how to square the statutory requirement that excluded her from asking the board to correct an agency mistake in the status that she was in fact in at that time, which means excluding mistakes, actual mistakes.

[00:03:54] Speaker 03:
Now forgive me, I may be a little confused on your question toward the end.

[00:03:59] Speaker 03:
But we'll concede that basically the agency may, and I use the word may, because I believe that is what the regulation says, that the agency may remove someone after a term employment period.

[00:04:13] Speaker 03:
Not arguing with you on that.

[00:04:14] Speaker 03:
However, there are exceptions, as we know in law.

[00:04:17] Speaker 03:
And there is an exception here.

[00:04:19] Speaker 03:
Clearly the agency read the regulations to allow a term employee who's under a Title 38 medical, which included my client,

[00:04:28] Speaker 03:
in an exempted position to have time to obtain their license and upon retaining that license, then they're automatically converted.

[00:04:42] Speaker 03:
The agency itself has acknowledged this in their handbook.

[00:04:46] Speaker 03:
And through their handbook, that's how they're interpreting the law.

[00:04:50] Speaker 03:
So we can't say do as I say versus do as I do.

[00:04:58] Speaker 03:
So they may have an argument, but I think that's going to be defeated had we had proper discovery.

[00:05:08] Speaker 03:
But even based on the law, she had that right.

[00:05:12] Speaker 04:
Well, based on what law?

[00:05:16] Speaker 03:
I believe it's Title 38.

[00:05:18] Speaker 04:
No, based on what, I'm sorry, I wasn't clear, based on what law did she have a right to be automatically converted to a permanent position from a temporary position when she secured her license?

[00:05:31] Speaker 03:
Based on the interpreter, forgive me, I may not have the right quote on me, but I believe it is Title 38 dealing with medical personnel, Title 5 and Title 38 dealing with medical personnel that's hired by the government.

[00:05:44] Speaker 03:
The thing is, going back to how that's being interpreted,

[00:05:48] Speaker 03:
with regards to her being converted.

[00:05:52] Speaker 03:
We look at the handbook for guidance.

[00:05:54] Speaker 03:
And yes, I understand that the handbook in itself does not create a new right.

[00:05:58] Speaker 03:
But even the handbook's first sentence says, this handbook provides an introduction to VA and its human resources, policies, regulations, and benefits.

[00:06:08] Speaker 03:
It should only be used as general information.

[00:06:09] Speaker 03:
And it goes on.

[00:06:11] Speaker 03:
But this is how the agency is interpreting the regulation.

[00:06:17] Speaker 03:
If this is how the agency is interpreting the regulation, then the judge should have found it had jurisdiction.

[00:06:28] Speaker 03:
Doesn't the agency entitle to some deference?

[00:06:32] Speaker 04:
So what regulatory language do you think gives her a right to anonymize?

[00:06:41] Speaker 04:
I understand the language of the

[00:06:44] Speaker 04:
But what is the language in the red that you think that handbook is interpreting?

[00:06:51] Speaker 04:
An agency gets deference when it's interpreting its own regulations, surely.

[00:06:57] Speaker 04:
But I'm trying to see where that interpretation is.

[00:07:00] Speaker 04:
What's the language that's being interpreted?

[00:07:03] Speaker 03:
Your Honor, I'll admit that at this moment, I don't know.

[00:07:05] Speaker 04:
Well, do you have your braves with you?

[00:07:06] Speaker 03:
Yes, I do.

[00:07:07] Speaker 03:
I do.

[00:07:09] Speaker 03:
At this very second.

[00:07:10] Speaker 03:
But my point is, that handbook had to come from something.

[00:07:15] Speaker 03:
that had to come from the regulatory interpretation.

[00:07:17] Speaker 04:
Why?

[00:07:21] Speaker 03:
The agencies can just make handbooks?

[00:07:24] Speaker 04:
Sure, handbooks that advise on various issues, maybe how they could be processed.

[00:07:33] Speaker 04:
But I mean, I don't think the handbook has ever been deemed binding law in and of itself.

[00:07:41] Speaker 04:
And it certainly says right in the inside cover that it's not meant to be interpreted as such.

[00:07:46] Speaker 04:
And so I'm trying to understand what the source of law is, because the handbook is not a source of law.

[00:07:51] Speaker 04:
And agency interpretations of regulations, yes, can be given deference, but I don't yet understand as I sit here, what language do you think that VA handbook statement is purportedly interpreting?

[00:08:17] Speaker 02:
I apologize, Your Honor, I'm flipping through my briefs.

[00:08:20] Speaker 04:
I mean, there's only one regulation cited in your brief, if that helps.

[00:08:37] Speaker 04:
It's on page one and page eight, and it's section 752.401.

[00:08:48] Speaker 04:
I think that's just about MSPB jurisdiction.

[00:08:51] Speaker 03:
Yes.

[00:08:52] Speaker 03:
But I'll concede I don't believe that was briefed as to specifically the genesis of where the handbook came from.

[00:08:59] Speaker 03:
But if this handbook is showing and reflective of the practices of the agency, then quite frankly, that would have been discovered in discovery.

[00:09:12] Speaker 03:
Maybe in the far end, the agency has the right to dismiss

[00:09:17] Speaker 03:
the petitioner.

[00:09:19] Speaker 03:
But we had the right to discovery to understand why they did it.

[00:09:27] Speaker 03:
Because the agency hasn't met its burden to show that there wasn't jurisdiction before the board.

[00:09:38] Speaker 03:
This argument to the agency's benefit might have worked after discovery.

[00:09:44] Speaker 03:
After they show, well, no, no, this is how we've always done it.

[00:09:46] Speaker 03:
This is how we've always interpreted it.

[00:09:49] Speaker 03:
They have to explain the handbook.

[00:09:52] Speaker 03:
Because we weren't the authors of the book.

[00:09:55] Speaker 03:
We don't understand where they got it from.

[00:09:57] Speaker 03:
It's our interpretation that they got it from the regulation, the Title 38 and Title 5.

[00:10:04] Speaker 03:
Because otherwise, where else did they get it?

[00:10:15] Speaker 03:
In other cases, obviously, for term and accepted appointments, once that period ends, their time is done.

[00:10:25] Speaker 03:
But we purport that she was converted as the pattern and practice of the agency.

[00:10:32] Speaker 03:
This is how they interpret the regulations.

[00:10:36] Speaker 03:
They acknowledge that we get an opportunity to allow you to get licensed and to see if you fit in.

[00:10:53] Speaker 03:
Under their handbook, there is a provision, and I'm getting to that now, talking about exempted employees.

[00:11:04] Speaker 02:
May I have a second, please?

[00:11:29] Speaker 02:
I believe it's... I want to say it's 26, but I don't think that's correct.

[00:11:51] Speaker 03:
But looking at appendix 27, under the second paragraph,

[00:11:57] Speaker 03:
The last sentence says, failure to become a licensor certified within the amount of time or result removal of the GS 185 social work series and may.

[00:12:09] Speaker 03:
So even there conceding, it's not automatic.

[00:12:12] Speaker 03:
Automatic dismissal.

[00:12:14] Speaker 01:
This is the handbook, right?

[00:12:15] Speaker 01:
Yes.

[00:12:16] Speaker 01:
OK.

[00:12:17] Speaker 01:
Where is the automatic conversion language that you rely on?

[00:12:22] Speaker 01:
Is that on appendix 48?

[00:12:26] Speaker 03:
If I may have a second, Your Honor, I'm sorry.

[00:12:33] Speaker 03:
Thank you, Your Honor.

[00:12:35] Speaker 03:
Under civil service accepted appointments, candidates for accepted positions must meet appropriate qualifications but do not.

[00:12:50] Speaker 04:
Are you still on page JA-27?

[00:12:51] Speaker 03:
No, Your Honor.

[00:12:54] Speaker 03:
I'm on appendix page 48.

[00:12:55] Speaker 04:
Thank you.

[00:13:02] Speaker 03:
And under Title 38, the language between the two of them covers that.

[00:13:17] Speaker 04:
Well, you're well into your rebuttal time.

[00:13:18] Speaker 04:
Would you like to save some?

[00:13:20] Speaker 03:
Yes, I would, Your Honor.

[00:13:21] Speaker 04:
Okay.

[00:13:21] Speaker 04:
Let's hear from the government.

[00:13:22] Speaker 04:
This is Reardon.

[00:13:33] Speaker 00:
Good morning.

[00:13:34] Speaker 00:
May it please the court?

[00:13:38] Speaker 00:
Miss Wells, the board did not have jurisdiction over Mrs. Wells' appeal.

[00:13:44] Speaker 00:
Mrs. Wells accepted a time-limited appointment to last three years.

[00:13:51] Speaker 00:
It was to automatically expire at the end of three years.

[00:13:56] Speaker 00:
Miss Wells did not have anything in writing.

[00:13:59] Speaker 00:
She was not promised.

[00:14:01] Speaker 00:
that she would be converted to any job at the end of three years.

[00:14:08] Speaker 00:
Petitioner says that the handbook says that she was to be automatically appointed.

[00:14:15] Speaker 00:
However, the handbook specifically says that this handbook.

[00:14:22] Speaker 01:
Where are you reading from?

[00:14:23] Speaker 00:
I pulled it out.

[00:14:30] Speaker 00:
from the handbook, but it's at the beginning of the handbook.

[00:14:35] Speaker 00:
And I'll find it in a minute, but could I just read it?

[00:14:39] Speaker 00:
The handbook says, this handbook provides an introduction to VA and its human resources, policies, regulations, and benefits.

[00:14:48] Speaker 00:
It is to be used only as a source of general information and should not be considered definitive guidance since the policies and regulations and benefits

[00:14:58] Speaker 00:
it describes may occasionally be revised or superseded.

[00:15:01] Speaker 00:
This handbook does not create any right or obligation on the part of the VA or any employee.

[00:15:09] Speaker 00:
Information concerning changes in VA facilities may be found at the home page.

[00:15:15] Speaker 00:
So the handbook itself says that it does not create a right on the part of the VA or on the part of the employee.

[00:15:24] Speaker 00:
The petitioner refers to one part of the brief that

[00:15:27] Speaker 00:
There was a discharge, termination, and in another part of the brief he refers that it was a failure to convert.

[00:15:34] Speaker 00:
You can't have it both ways.

[00:15:37] Speaker 00:
She was not terminated.

[00:15:38] Speaker 00:
The agency did not perform any type of employment function that was a function that allowed her to file an appeal with the board.

[00:15:49] Speaker 00:
She had a time-limited term appointment.

[00:15:52] Speaker 00:
with a specific limited time that was to expire at the end of three years.

[00:15:58] Speaker 00:
The agency simply allowed her term to expire.

[00:16:03] Speaker 00:
Unfortunately, when Petitioner got her license, she apparently received the wrong license.

[00:16:10] Speaker 00:
The individual who told her congratulations, I no longer have to co-sign your notes, did not have any authority to appoint her to anything.

[00:16:22] Speaker 00:
And if petitioner claims that there was a failure to appoint, then a failure to appoint really amounts to a failure to hire, for which the board also do not have jurisdiction.

[00:16:34] Speaker 04:
I'm sorry, ma'am?

[00:16:37] Speaker 04:
His argument, as best as I can tell, is that the VA handbook somehow created an automatic transition from her temporary appointment status to a permanent appointment status if she receives

[00:16:52] Speaker 04:
requisite license.

[00:16:53] Speaker 04:
I can't even find that language anywhere in the VA handbook.

[00:16:56] Speaker 04:
Now your brief basically focuses on, well, no matter what's in the VA handbook, the VA handbook isn't binding on anybody, but I don't even see... It's not in the VA handbook.

[00:17:07] Speaker 04:
I don't even see anything in the VA handbook that actually gives him... Even if the VA handbook was a regulation, I don't actually see anything within it that supports

[00:17:19] Speaker 00:
There isn't, Your Honor.

[00:17:20] Speaker 00:
There isn't anything in the handbook that says she had a right to be converted.

[00:17:25] Speaker 00:
And the language he refers in the handbook does not refer to limited term appointments in any event.

[00:17:32] Speaker 00:
So she doesn't have a right to be converted.

[00:17:34] Speaker 00:
There's nothing in the handbook that refers to the type of appointment which Miss Wells received.

[00:17:40] Speaker 00:
Unfortunately for Miss Wells, the agency allowed her appointment to expire, which

[00:17:48] Speaker 00:
She knew it was going to expire at the end of three years anyway.

[00:17:52] Speaker 00:
Now, he refers to the license.

[00:17:57] Speaker 00:
She worked in Florida.

[00:17:58] Speaker 00:
She got a Georgia license.

[00:18:00] Speaker 00:
There is also nowhere where the agency advised her that her Georgia license was the appropriate license for her to have gotten, even if it considered that the agency was going to convert her to a permanent job.

[00:18:18] Speaker 04:
obtained a Florida license instead of a Georgia license.

[00:18:23] Speaker 04:
Is there a guarantee that the agency would have converted her from temporary to permanent?

[00:18:28] Speaker 04:
I don't even see that anywhere.

[00:18:29] Speaker 04:
That's why I'm so bewildered because I don't even see that the agency guarantees the conversion of a temporary employee to a permanent employee, even if they get the perfect and appropriate license.

[00:18:42] Speaker 00:
No, there is no guarantee.

[00:18:44] Speaker 00:
She has nothing in writing.

[00:18:46] Speaker 00:
She has nothing even orally, and orally would not count, but she has nothing in writing that says that she had a guarantee or any right to be converted to a permanent employee, even had she received the permanent license in Florida.

[00:19:04] Speaker 00:
So she had a time-limited appointment that expired when it was supposed to expire.

[00:19:11] Speaker 00:
She was told at the beginning when it was to expire,

[00:19:15] Speaker 00:
And the agency simply allowed her time-limited appointment to expire.

[00:19:20] Speaker 00:
So the board has no jurisdiction.

[00:19:21] Speaker 04:
Just to be clear, she was not a career-conditional appointment.

[00:19:24] Speaker 00:
No, she was not.

[00:19:25] Speaker 04:
Because that's the only language in the VA handbook.

[00:19:27] Speaker 04:
It's directed expressly and unequivocally to a career-conditional appointment where your appointment automatically converts to a career appointment.

[00:19:36] Speaker 00:
No, she was a time-limited.

[00:19:37] Speaker 04:
But there's no dispute that she's... OK.

[00:19:38] Speaker 04:
No, no, she was not.

[00:19:39] Speaker 04:
Is there anything further?

[00:19:40] Speaker 00:
So the board had no jurisdiction.

[00:19:44] Speaker 00:
The section to which he refers, refers to the types of actions over which the board had jurisdiction.

[00:19:51] Speaker 00:
And she does not fit in either one of those categories.

[00:19:54] Speaker 00:
And unless you have additional questions of me, I submit.

[00:19:59] Speaker 00:
Thank you, Ms.

[00:19:59] Speaker 00:
Reardon.

[00:20:00] Speaker 00:
Thank you very much.

[00:20:00] Speaker 04:
We have some rebuttal time, Mr. Eisenberg.

[00:20:11] Speaker 03:
Your Honors, thank you.

[00:20:13] Speaker 03:
Even if the handbook is void of the specific language that we're discussing here, and yes, I acknowledge there may be an issue of where the regulations are coming from, I invite the court to look at appendix 93.

[00:20:26] Speaker 03:
The agency, again, interpreted the regulations, quote, according to our records, you do not possess a license to practice social work independently and without the need of supervision

[00:20:43] Speaker 03:
of your practice.

[00:20:44] Speaker 03:
As such, you have not met the condition of employment with our agency and you are not eligible for conversion to a permanent employment appointment.

[00:20:53] Speaker 03:
The social work standards specify so on and so forth.

[00:20:57] Speaker 03:
There is nothing in the record that reflects that my client does not have the right license.

[00:21:04] Speaker 03:
There is nothing in the record that reflects that she has to have the license of a particular state.

[00:21:12] Speaker 03:
I also posit that

[00:21:15] Speaker 03:
Why else may she have been fired?

[00:21:19] Speaker 03:
She also has an ongoing EEO complaint because she was out for medical leave.

[00:21:28] Speaker 03:
But I realize that's not necessarily the issue here today.

[00:21:31] Speaker 03:
There is no evidence that she had the wrong license.

[00:21:35] Speaker 03:
For a lot of the gap of how the agency was thinking or why the agency did what it did,

[00:21:41] Speaker 03:
Well, unfortunately, we don't know that because we were denied discovery.

[00:21:46] Speaker 03:
We were denied the opportunity to question, obtain facts and records and emails.

[00:21:55] Speaker 03:
Not only did we have our conversion argument, we also had an interference argument of prohibited personnel practice, 5 USC 2302 B 2 and 4.

[00:22:07] Speaker 03:
In particular, she's told that this is the license you have to get.

[00:22:11] Speaker 03:
This is the license you need to keep your job.

[00:22:14] Speaker 03:
This is the license you need to be converted.

[00:22:19] Speaker 03:
Then the agency is at fault.

[00:22:23] Speaker 03:
I hear your concerns, but we can't just look at the specific black letter law.

[00:22:30] Speaker 03:
We have to look at the entire picture in part papered by the agency.

[00:22:34] Speaker 03:
I rest my case.

[00:22:37] Speaker 03:
Thank you.

[00:22:38] Speaker 04:
I thank both counsel for their arguments.

[00:22:40] Speaker 04:
The case is taken under submission.

[00:22:43] Speaker 04:
Our next case today is 2017-1437.