[00:00:01] Speaker 04:
Again, good morning, Your Honors.

[00:00:03] Speaker 04:
Basically, I'm here representing a former employee of the Navy.

[00:00:08] Speaker 04:
He had been hired basically as a maintenance person on air conditioning.

[00:00:16] Speaker 04:
He'd been working there for 20 months.

[00:00:19] Speaker 04:
After the 20 months, he was discharged.

[00:00:22] Speaker 02:
OK.

[00:00:22] Speaker 02:
But the statute says there's a two-year probationary period.

[00:00:25] Speaker 02:
I'm going to address that, Your Honor.

[00:00:26] Speaker 02:
Well, I'm asking you, how could it be that there's an implied, in fact, contract that abrogates the two-year statutory period?

[00:00:36] Speaker 02:
Wait.

[00:00:36] Speaker 02:
Don't interrupt me, please.

[00:00:38] Speaker 02:
And the Supreme Court's decision in Merrill, for example, says you can't have a contract.

[00:00:45] Speaker 02:
Unless there's authority, how could someone have authority to enter into a contract that's contrary to the statute?

[00:00:52] Speaker 04:
I think the exhumed still stands in the case that I'm representing.

[00:00:57] Speaker 04:
Basically, the fact is that there was exhibit the appendix 25 and 29 are basically contracts that were submitted to my client as an offer of employment.

[00:01:15] Speaker 04:
which guaranteed his employment.

[00:01:19] Speaker 02:
I don't think you're answering the question.

[00:01:21] Speaker 02:
How could it be that somebody in the government has the authority to enter into a contract which is contrary to the statute?

[00:01:28] Speaker 02:
Basically, it was an error on the government, Your Honor.

[00:01:31] Speaker 02:
It wasn't an error on my client.

[00:01:33] Speaker 02:
Yes, but the government, even if the government makes an error, it can't make a contract if there's no authority.

[00:01:39] Speaker 02:
And if there's no authority, if it's contrary to the statute, don't interrupt if it's contrary to the statute.

[00:01:48] Speaker 04:
Your Honor, I think the main issue was the SF 50, correct?

[00:01:53] Speaker 04:
The debt basically, at the beginning, was determining the length of my client's employment.

[00:02:01] Speaker 01:
And there's no dispute that that was wrong.

[00:02:03] Speaker 01:
But Judge Dyke's point, I think, which you haven't responded to, is why does that matter at the end of the day if the statute provided for it?

[00:02:13] Speaker 01:
Because there's a line of cases.

[00:02:14] Speaker 01:
Let me finish.

[00:02:16] Speaker 01:
If the statute provides for a two-year probationary period, okay, we all acknowledge that somebody messed up at some point on the SF-50, and then they corrected it.

[00:02:27] Speaker 01:
But how does that get you to the relief you're seeking here?

[00:02:34] Speaker 04:
I hate to always interrupt.

[00:02:35] Speaker 04:
I sometimes just feel like necessity, but I'm sorry.

[00:02:41] Speaker 04:
I apologize.

[00:02:42] Speaker 04:
Basically, there's a line of cases that was even submitting

[00:02:45] Speaker 04:
by the government, which indicated some of their cases basically went in line with if there's a change in the SF-50, that there's a duty potentially to notify the person that there is going to be a change in their tenure.

[00:03:05] Speaker 04:
And that was on several of the cases.

[00:03:07] Speaker 04:
Now, they tried to carve out the exhumed case with showing different transfers within

[00:03:13] Speaker 04:
not be covered by the exhumed case, which I understand.

[00:03:17] Speaker 04:
But in this case, we have a situation where we've got an employee who becomes, from his perspective, a one-year employee working for 20 months.

[00:03:28] Speaker 04:
At no time during that 20 months does anybody tell him that his SF50 has been changed.

[00:03:33] Speaker 04:
There's nothing in the record to indicate that.

[00:03:36] Speaker 04:
And again, I can certainly look at the brief of

[00:03:42] Speaker 04:
the government in regards to this, where they've actually indicated, not saying it was negligence, but they're saying it was erroneously issued.

[00:03:50] Speaker 04:
Now who should that fall on?

[00:03:51] Speaker 04:
Should it fall on the person who, in good faith, takes a job?

[00:03:55] Speaker 04:
Or should it fall on the government, through a staple, that they can't change something that they've already put in course?

[00:04:01] Speaker 03:
Mr. Smith, you make what, to me, is a very appealing argument, which is

[00:04:08] Speaker 03:
The government, by the way, didn't make the mistake.

[00:04:11] Speaker 03:
Some bureaucrat, some paper pusher in the system filled it out in ignorance of the statute.

[00:04:20] Speaker 03:
OK.

[00:04:21] Speaker 03:
The problem is that while I'm attracted by your argument, we have a line of cases that go back to the, I don't know how far back, that say if a bureaucrat

[00:04:36] Speaker 03:
erroneously does something that's inconsistent with what Congress has authorized, the bureaucrat's wrong.

[00:04:46] Speaker 03:
And there's nothing we can do about that.

[00:04:48] Speaker 03:
Now, there's a whole line of cases that say that.

[00:04:52] Speaker 03:
The exceptions are the situation where somebody comes in and says, I want to change my status.

[00:05:01] Speaker 03:
And the bureaucrat says, oh, OK, no problem.

[00:05:04] Speaker 03:
Change your status.

[00:05:06] Speaker 03:
We'll do it.

[00:05:07] Speaker 03:
But the bureaucrat doesn't bother to tell the employee, and by the way, when you do that, you're suddenly going to lose all your rights.

[00:05:17] Speaker 03:
That's a different case than we have here.

[00:05:20] Speaker 03:
This is the basic, hard case of the employee who is told one thing and the law is something else.

[00:05:33] Speaker 03:
And I agree with you.

[00:05:35] Speaker 03:
In my view, the harm should fall on the bureaucrat who ought to lose his or her job.

[00:05:42] Speaker 03:
But the issue is, should the government be bound by the ignorance of its bureaucrats?

[00:05:50] Speaker 03:
And the answer the law has always said is no.

[00:05:55] Speaker 03:
I mean, that happens to be the law.

[00:05:57] Speaker 03:
How do you want us to get around that?

[00:06:04] Speaker 04:
I believe in the Grisby case, which is the government's case.

[00:06:11] Speaker 04:
Basically, they reviewed and actually said, while we find the SF-50 is not legally binding, we note that the government may not be free of all circumstances to exclude the effects of their errors.

[00:06:27] Speaker 04:
Now, it's been pointed out in the brief by the government

[00:06:31] Speaker 04:
that they did an error.

[00:06:32] Speaker 04:
And they referred to that many times.

[00:06:36] Speaker 02:
The Exxon case on which you rely, and you mentioned in the oral argument, has been specifically disapproved by us and Williams.

[00:06:45] Speaker 04:
Well, basically, it's not good law.

[00:06:49] Speaker 04:
It's not good law when we're dealing with transfers.

[00:06:51] Speaker 04:
What you have is sort of a watershed type case.

[00:06:55] Speaker 04:
You've got a situation where somebody has gone to work, vigorously worked for 20 months,

[00:07:01] Speaker 04:
And during those 20 months, nobody brings it to their attention that, oh, by the way, you're a two-year probationary point.

[00:07:10] Speaker 04:
There's this expectation of comfort.

[00:07:12] Speaker 04:
There's an expectation that I should be able to come to work knowing that I'm now longer a probationary employee, that I can feel free to look that I'm going to be protected by my job.

[00:07:24] Speaker 04:
That's the only thing that's at issue here.

[00:07:25] Speaker 04:
It's not the issue of transfer.

[00:07:27] Speaker 04:
It's not the issue of I tried to apply for a different job, like William.

[00:07:31] Speaker 04:
The difference is, this is a straightforward, this type of an estoppel case that the government can't back off from.

[00:07:40] Speaker 04:
I've used up some of my time.

[00:07:43] Speaker 01:
Well, let's turn to the government.

[00:07:54] Speaker 00:
Good morning.

[00:07:55] Speaker 00:
May it please the court?

[00:07:56] Speaker 03:
This is the battle of the Smiths.

[00:07:58] Speaker 00:
It is the battle of the Smiths, Your Honor.

[00:07:59] Speaker 00:
I'd like to start with the point, unless there was a question.

[00:08:02] Speaker 03:
Why shouldn't somebody who is misled by the bureaucracy have some remedy?

[00:08:10] Speaker 00:
Because the law says there is none.

[00:08:11] Speaker 00:
The law is very clear under Grigsby, Lopez, similar cases that what is on the SF50 is not determinative.

[00:08:18] Speaker 00:
It is not controlling.

[00:08:20] Speaker 00:
The true nature of the appointment is what governs.

[00:08:21] Speaker 00:
There is no implied, in fact, contract with the government.

[00:08:24] Speaker 00:
There is case law going back more than 20 years stating that government positions are a matter of appointment and not of contract unless there cannot be an implied contract.

[00:08:34] Speaker 00:
And regarding what Mr. Smith said about there not being any notice to Mr. Ah, that's incorrect.

[00:08:41] Speaker 00:
On page appendix 37, it shows that the agency actually issued about five months into his tenure a corrected SF50 showing the correct appeal rights.

[00:08:50] Speaker 00:
This was well over a year before he was fired.

[00:08:53] Speaker 00:
So it's simply not correct that he learned of this on the day of his firing.

[00:08:57] Speaker 01:
I haven't been a bureaucrat for a long time.

[00:08:59] Speaker 01:
What happens when you get a revised SF-50?

[00:09:02] Speaker 01:
Does the employee get it, or is it just he gets put in his personnel file?

[00:09:06] Speaker 00:
The employee should get it.

[00:09:07] Speaker 00:
It goes in his personnel file, and there should be notification to him of that.

[00:09:10] Speaker 00:
Certainly, currently, there is most agencies use an electronic personnel file, which gives notification to the employees through an automated system.

[00:09:22] Speaker 00:
Unless something went wrong with that, he should have received the notice, and he certainly never said he didn't receive the notice.

[00:09:29] Speaker 03:
But the government never said he did get notice either.

[00:09:32] Speaker 00:
Well, it's the petitioner's burden to prove it, Your Honor.

[00:09:34] Speaker 00:
It's his burden before the MSPB.

[00:09:36] Speaker 00:
He never raised this issue before the MSPB.

[00:09:38] Speaker 00:
In fact, he never submitted anything before the MSPB accept his initial appeal documents.

[00:09:42] Speaker 01:
But is it your view that notice was required or that somehow if he had not gotten notice of the change?

[00:09:48] Speaker 00:
No, that's not our view.

[00:09:48] Speaker 01:
Because if the SF50 remained the same, then who would have it?

[00:09:52] Speaker 00:
Our view is that even if the SF50 had remained the same, the outcome would be the same.

[00:09:56] Speaker 00:
I simply wanted to address the contention that he didn't receive the notice when, in fact, it's clear that he did.

[00:10:00] Speaker 01:
What about if an employee I come to you and I say you sure this is only a one year probation because I'm about to quit my other good job that I love and I think that's a really important factor for me and I wouldn't quit my job and come here if this were a two rather than a one year probationary period and you sit there and say yep you have my assurance and I do all this stuff and I move my family and I sell my house and I take this job and I've made it clear

[00:10:27] Speaker 01:
That's my understanding.

[00:10:29] Speaker 01:
Same difference, right?

[00:10:30] Speaker 00:
Same difference.

[00:10:31] Speaker 00:
It's obviously a very unfortunate situation.

[00:10:33] Speaker 00:
That's the situation that was covered under Exum and some of those other cases that the court overruled last year in the Williams case.

[00:10:39] Speaker 00:
And so while that is unfortunate, there is simply no estoppel against the government.

[00:10:43] Speaker 00:
There is no implied effect contract that would accrue against the government.

[00:10:47] Speaker 03:
So that anybody who takes a job with the government should have a lawyer.

[00:10:51] Speaker 03:
Is that what you're telling us?

[00:10:53] Speaker 00:
Well, I think there is.

[00:10:55] Speaker 00:
No, I wouldn't say that exactly.

[00:10:57] Speaker 00:
I would say that while it's unfortunate, this is not an uncommon occurrence.

[00:11:01] Speaker 00:
This actually happens all the time.

[00:11:03] Speaker 01:
It's not reassuring.

[00:11:04] Speaker 00:
It's not reassuring, but it's true.

[00:11:06] Speaker 00:
I don't know about Mr. Ah, but a lot of employees are members of unions.

[00:11:11] Speaker 00:
Unions can certainly provide information.

[00:11:13] Speaker 00:
HR can provide information.

[00:11:15] Speaker 00:
And Mr. Ah actually appears to have had previous government service, and so he should have been well aware of the very idea that there might be a probationary period

[00:11:23] Speaker 00:
This should not have been a surprise to him, even if the length of the period might have been at some point a surprise.

[00:11:31] Speaker ?:
OK.

[00:11:32] Speaker 00:
There are no further questions.

[00:11:33] Speaker 00:
Thank you.

[00:11:34] Speaker ?:
Thank you.

[00:11:42] Speaker 04:
Again, I'm looking at this court as also making the law, as also interpreting the law, but also as a court of equity.

[00:11:50] Speaker 04:
And again, I think the argument that I'm making maybe is the first time I haven't seen anything in all of the Lexus that I've done that would fit this, because everything is separate.

[00:12:02] Speaker 04:
All people who are working, people who voluntarily were asking for transfers.

[00:12:06] Speaker 04:
What I'm really asking this court is to remand the case back so it can be determined

[00:12:12] Speaker 04:
that he is subject to one year condition for probation, and that they should have allowed him to challenge that he did perform as general.

[00:12:22] Speaker 04:
I mean, just to say, we're not going to look at what you did.

[00:12:26] Speaker 04:
We're going to look at what the honor said.

[00:12:32] Speaker 04:
The law is the law.

[00:12:33] Speaker 04:
Well, if we had the law as the law, there wouldn't be much left from maybe the early Constitution.

[00:12:42] Speaker 04:
We would be bound by that.

[00:12:44] Speaker 04:
But things change.

[00:12:45] Speaker 04:
And that's what I'm asking this court to do, is to look at making it so it's equitable, making it so that the MSPB board does their job.

[00:12:56] Speaker 04:
And I would appreciate the remand.

[00:13:01] Speaker 04:
Unless there's any questions.

[00:13:02] Speaker 01:
Thank you.

[00:13:03] Speaker 01:
We thank both sides in the cases submitted.