Lee v. Merit Systems Protection Board, 857 F.3d 874

Regina Lee served nearly six years in federal term appointments before entering the Federal Career Intern Program (FCIP) on March 16, 2008.
The agency notified Lee on March 5, 2010 that her FCIP appointment would expire March 15, 2010 and that it would not be converted to a competitive service appointment.
Upon expiration of the FCIP term, Lee was separated from federal service and appealed to the Merit Systems Protection Board (MSPB).
An Administrative Judge dismissed Lee’s appeal for lack of MSPB jurisdiction; the full Board affirmed. Lee appealed to the Federal Circuit.
The legal question turned on whether nonconversion/termination at the end of an FCIP appointment constitutes an "adverse action" appealable to the MSPB and whether Executive Order 13,162 created a legally enforceable conversion right.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether nonconversion/termination after FCIP appointment is an "adverse action" appealable to the MSPB	Lee: Successful completion of FCIP confers rights to further federal employment; nonconversion is an adverse action	Agency: FCIP regulations provide no automatic right to conversion; termination at end of internship is not an adverse action appealable to MSPB	Held: Not an adverse action; MSPB lacks jurisdiction over the appeal
Whether Executive Order No. 13,162 creates an enforceable right to conversion	Lee: EO language makes conversion an "exception" and thus confers rights upon successful interns	Agency: EO is similar to the regulation, only permits consideration for conversion and explicitly disclaims enforceable rights; cannot override regulation	Held: EO does not create an enforceable right and does not cure the Board's lack of jurisdiction

Rocha v. Merit Sys. Prot. Bd., 688 F.3d 1307 (Fed. Cir. 2012) (agency decision not to convert an FCIP intern is not an adverse action)
Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215 (Fed. Cir. 2011) (standard of review for Board jurisdiction is de novo)