Court: Fired Ex-Prosecutor Can Challenge Termination

, Legal Times

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Judge Richard Taranto of the U.S. Court of Appeals for the Federal Circuit
Judge Richard Taranto of the U.S. Court of Appeals for the Federal Circuit

A former assistant U.S. attorney in Texas can challenge her firing, a federal appeals court has ruled, finding that the seven months she worked while her background check was pending counted towards her two-year trial period.

Amy Mitchell was initially hired under a "temporary" appointment as an assistant U.S. attorney in December 2008. Her background cleared seven months later, and she was hired again in August 2009 for the same job. In late July 2011, she was fired.

Mitchell tried to appeal to the Merit Systems Protection Board, but was told she couldn't because she was fired before the end of her two-year trial period. The first seven months didn't count, the board said, because she was hired as a "temporary" employee. The U.S. Court of Appeals for the Federal Circuit this month reversed the board's decision, finding Mitchell's initial appointment didn't meet the standards for being considered "temporary."

Mitchell's attorney, Kristina Caggiano, an associate in Duane Morris' Washington office, said the ruling went against the government’s efforts to avoid employee protection laws. The Federal Circuit was hostile to the idea of using "temporary" appointments to reset the two-year clock for new hires, she said.

"I think there's writing on the wall that they're not going to get way with that," Caggiano said.

Mitchell started working as a government lawyer in 1998 for the Social Security Administration, according to the Federal Circuit's Jan. 15 opinion. In 2006, she was appointed as a special assistant U.S. attorney in the Northern District of Texas.

Two years later, she was hired in the same office as an assistant U.S. attorney. Her initial hiring form said the appointment was temporary—it would last no more than 18 months—because her background check was still pending. Seven months later, in July 2009, she passed her background check and received a new hiring form stating she would be subject to a two-year trial period beginning in August 2009.

During the trial period, Mitchell could be fired without cause and wouldn't have any right to appeal. She was fired on July 29, 2011—a few days before her trial period expired.

Caggiano argued in the Federal Circuit that Mitchell should have appeal rights because she served more than two years, counting the seven months she worked while waiting for her background check to clear.

Judge Richard Taranto, writing for the three-judge panel, pointed to Office of Personnel Management regulations that define a "temporary" appointment as one year or less. Mitchell's initial appointment was 18 months, he said, and therefore couldn’t be considered temporary.

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