our joy was a ph d candidate an electrical engineer when he was offered a position celko skep position that's a student career experience program as a student trainee engineer  the time had under consideration other positions which all of which had one year probationary period the agency at the time he was offered the position and at the time he was hired made the representation a fact that the is a binding legal document there are cases that hold that it's not a binding document but it was a representation made by the agency that that was the probationary period but he signed this other agreement said that you must complete certain requirements due to the approval of the government in your educational program and upon completion of that you will be granted permanent status but it didn't say that there was a two year probationary period a one year probation that's not consistent with the notion that there's a one year probationary period now after he serves the one year irrespective of whether or not the requirements are completed or enough he becomes the permanent  employees one if they have are not serving a probationary period under a national employment or have completed two years of continuous service in the in the same position a joy it was dismissed twenty three months into his employment saw had he been there another year and then i mean another month and then dismissed he still would have had his appeal rights of the m s p big the agency at some point i realized that or to to it's a pain in that there was not a one year probationary period and prepared a nother standard for fifty eight which was dated  almost of two thousand and nine approximately six months before he was terminated removing that provision from the earlier standard for fifty one thousand people back to the statute the statute says an individual accepted service other than a preference helical eligible and it says it's number one who is not serving a probationary or trial period under an additional appointment pending conversion to the competitive service if you look at the legislative history that conversion that's necessary here he was neither converted nor was employed for two years so under the statute he can't qualify regardless of what his probationary term was or wasn't he was our position is that the agency should be a stop from denying that in the interest of justice because the agency misled mr ira joy it initially in telling him that there was a one year probationary period secondarily not telling him appeal they came up with this so you're saying the agency not only as an stopped from extended period but it by implication the agency has to assume that he was murdered at the end of that period within the meaning of the then he would have been eligible under the per section as i understand it ok so you're saying versions automatic at the end of a probationary period that's our position are ok now with respect here and stop claiming how do you deal with the three or four or five at one congress sets the standards by which jurisdiction is to be determined secondly facts have to be presented to the m s p be that in that for within the standards set by congress so jurisdiction it was  standard for a stop will to a stop the agency from denying that he had not completed his one year probation in that period and therefore he would be eligible under the standard set by congress there's you would like to turn him over rule those earlier cases and the standards of commerce a say that the standards set by congress establish the statutes and act by congress establish the standards for jurisdiction an agency cannot by a cell words change its stance the agency by itself words cannot change the statute and agency cannot advise an employee that you can appeal to the m s p b when congress says you can appeal at the end it what an agency cannot do we submit is to change the facts and if it changes the facts in a way that are misleading then the agency is a stop from asserting facts g w university until he had to complete the classes the star gys response is he notified the agency and habits approval to change to george washington university and furthermore that as you read the although he didn't complete the courses by rolling in them by paint by attending he had met the terms of the agreement and i think that's a fair question to be determined by the m s p big that that is an issue of the  and completed his classes but he was never notified you never had the opportunity to meet the agency's challenge since he signed the agreement degree which what we're talking about the terms of the agreement with respect to in the middle classes he signed  under the terms of the agreement it didn't say you had to complete the courses as we should that it set as he understood it he had to sign up he had the opportunity to if he was unable to complete it to continue the program so that he  would you turn on the reason to suspect it might be a complainer i think it's very unfortunate that the agency made this mistake but i would go back to the statute and say regardless of that mistake the board can only take jurisdiction over those cases that it has jurisdiction under statute regulation or rule and just as an agency cannot give an employee appeal ri an agency cannot give an employee appeal rights by the stake or the parties cannot agree that a case is within the or superstition there has to be some statutory regulatory or a basis for the board's jurisdiction a a person who took a second or a point within the same agency or was involuntarily removed but these are people who who already have existing appeal rights to the board and through some misinformation or  is that right yes sure that's correct and what how do you respond to his argument that that while he understood he couldn't be completely converted to a civil service employment position until he finished his ph d requirements that doesn't cases agencies probably create a tickler file that says employee is probationary period is ending january first and in december of the previous year they say we've got to really make sure we want to retain  converted and until i finished his ph d requirements that didn't change the fact that that he believed he had been employed long enough to at least appeal that that terminated from our current well he had that belief the civil service reform matter that gives the board jurisdiction over some betters and not others and i'm just i just don't believe there's a they could jurisdiction at the board to have to hear probationary it really is indefinite because he was permitted to be a scamp a student career experience program employee provided he was working as a work study agreement and working towards a degree and if he had completed the required number of work hours and the degree he was eligible for a conversion to the competitive service it was not guaranteed it was not automatic in the interpretation which says that not completing the class skep card is no he will only be able to argue that if the initial threshold question of jurisdiction were serious inequity yes in the covington case and the others upon which petitioner realize those employees already were what's called statutory employees that had  someone who had applied for a job and never had any appeal rights other recent kero decision kind of describes this in terms of what is the definition of employee for appeal rights there has to be enough to meet that to have the st y trigger where you can go to the board here he never met it because he was an accepted service appointee he met me there section one or two a seventy five eleven a one c he had not completed two years that's  did and he was he was serving a trial period or probationary period or whatever you want to call it what's really a controlling is the source of the legal authority for his appointment and on that  which is the skep program that's the legal under authority under which he was appointed and under that authority he had to serve a trial period for as long as he was in school and working and once he completed that program then he was eligible conversion to the competitive service even though that was not guaranteed and in the a dent into our brief that pages twenty eight to twenty nine the regulations that govern the skep program provide for example that in order to be because he would have met subsection two and those sections are in the alternative he only had to meet one not both of the subsections if he had as we explained in our brief if he had worked for more than two years he would have had appealed rights but but he didn't and i would like to respond to points made earlier that it seemed like this was at the eleventh hour but in effect the skep agreement put the burden on him to provide grades et months or more before the war he got the notice in december of zero nine the agency was asking him for information about his his schooling and i i say this because this should have been no surprise to him that he had to submit this information and that he could be terminated if he wasn't in the program because the skep agreement provided that and the regulations program provided that but all this goes to the issue of whether the board had any jurisdiction and there are a number of cases from the court where even if the agency had provided misinformation or failed to provide information which which there's no evidence in this case it's still as a matter of law does not create jurisdiction at the board in the don't call barker case the agency had informed the employee that he had appeal rights to the word but really the collective bargaining agreement was the exclusive remedy and there really were no appeal rights in the rice case there was information that the employee would have appeal rights but he was appointed to a defense intelligence agency for which there were no appeal rights in the campion case the agency told the employee first hired that as s t s he would have appeal rights but that was not the case so really it's a question of law  governing the the skep programs well that out in detail and we've also included an o p m fact sheet about the skep program that also explains  in the prior drop job and all of those cases the employees were not appealing anything that happened to them in the prior job they were appealing what happened to them in the labor job so i submit that's a distinction without a difference they  of his appointment rights that's exactly the situation we have here when it came back before this court again in two thousand and ten the court found that the agency's better to advise mr carroll of the terms of disappointment did not create appeal right in this case the agency goodbye's mr are a joy of what it now claims is incorrect information it at some point realized the information was incorrect it never corrected that information before it terminated mr or enjoy it and he relied on that information in accepting the a point mr average lawyer has said in his pleadings that he had other jobs available to him but he accepted this one because it had a one year a probationary period as the other ones did