On May 18, the U.S. Court of Appeals for the Federal Circuit ruled that an employee did not voluntarily waive his appeal rights when he signed a “Probationary Period Agreement”. Ramos v. Department of Justice, No. 04-3186 (2005) (non-precedential). Mr. Ramos had been a Border Patrol Agent for three years when he was selected for a position as a Deportation Officer. When the then- Immigration and Naturalization Service appointed him to the Deportation Officer position, it required Mr. Ramos sign an agreement stating that his “rights . . . for adverse and disciplinary actions will be processed in accordance with the Federal Regulations Part 315 – Career and Career-Conditional Employment.” The agency also issued an SF-50 stating that Mr. Ramos’ new position was subject to a one-year probationary period, even though Mr. Ramos had already successfully completed a probationary period. Less than a year later, the Department of Homeland Security summarily fired him without first providing him required due process, such as advance notice, an opportunity to respond with an attorney, or MSPB appeal rights.
The MSPB found that the removal was legal, arguing that even though Mr. Ramos met the definition of an “employee” entitled to MSPB appeal rights, agencies should have discretion to require new probationary periods. The Federal Circuit reversed the Board, ruling that Mr. Ramos successfully met the definition of “employee” and the Probationary Period Agreement was not a knowing and voluntary waiver of his MSPB appeal rights. The court remanded to the Board for further proceedings and ordered that Mr. Ramos be reimbursed for costs.
The Federal Circuit’s order, although unpublished, is important, because it reverses the Board’s decision, which was relied upon in several cases at both the MSPB and in at least one case at the Federal Circuit. In a highly unusual move, the Department of Justice rejected the Board’s legal theories in its brief to the court and consented to all of Mr. Ramos’ legal arguments. Kristin D. Alden, Principal, Passman & Kaplan, represents Mr. Ramos.
** 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. **
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to https://www.fedweek.com/pub/index.php.