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EXCERPT FROM OPM GUIDANCE

your agency policies must ensure the following individuals also are "employees" for purposes of taking an adverse personnel action against them: 

Competitive service employees currently serving a probationary or trial period when they have 

completed one year of current continuous service under other than a temporary appointment limited to one year or less, regardless of the position previously held

Excepted service employees (other than preference eligibles) currently serving a probationary or trial period when they have 

completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less

If your policies are inconsistent with these decisions, you must revise them immediately.

2. Agencies Should:

A. Educate Staff and Quickly Identify when Probationers Will Obtain Full Rights

In a post-Van Wersch and McCormick world, agencies need to understand that even though an individual is serving a probationary or trial period, the individual may still be entitled to full pre-termination procedural and post-termination appeal rights if he or she has the requisite type and amount of prior service. This understanding should be communicated to all personnel who have a role in the assessment and termination of new employees.

To ensure that the probationary or trial period continues to serve its intended purpose as an effective assessment tool, agencies must identify – before or soon after an individual is hired – the type and amount of prior Federal service the individual has performed. This information can be used to calculate when the individual will obtain full procedural and appeal rights, and how long the assessment period will last. Managers and new employees should then be informed of the projected date upon which the employee will obtain full procedural and appeal rights.

To make this determination, agencies should begin with any prior Federal employment history included on an appointee’s resume or application. The accuracy of such information should have been verified through a reference check.45 Each appointee should also complete a Standard Form 144, statement of Prior Federal Service, which requests a list of all prior Federal service, including dates and type of appointment. Agencies should be proactive in obtaining information relating to prior service. If the individual is being appointed without a break in service from another Federal agency and the Official Personnel File has not been received, agencies may obtain information by using Standard Form 75, Request for Preliminary Employment Data. This form requests such information as the employee’s position and occupational code with his current employer, as well as the nature, date, and authority for the prior service appointment, and probation information. After obtaining this information, agencies can attempt to accurately compute the length of time they have to assess a candidate and, if necessary, terminate the candidate before he or she becomes entitled to full procedural and appeal rights.

In addition, the history of the McCormick case after the court’s decision offers an example of how the likelihood that a terminated probationer will be returned to the rolls with full back pay and benefits may be minimized. Specifically, in McCormick v. Department of the Air Force, 98 M.S.P.R. 201 (2005), the Board found that the appellant’s termination under 5 C.F.R. § 315.804 comported with her constitutional right to minimum due process of law because she received notice of the action against her, an explanation of the reasons for the action, and an opportunity to present her response, albeit in an abbreviated format and time frame. The question therefore became one of procedural error, i.e., whether the appellant could prove that taking the action as the agency did likely caused it to reach a conclusion different from the one it would have reached in the absence or cure of the error. The Board remanded the appeal for adjudication of that issue, as well as the merits if harmless error were found. Under the circumstances, the agency was ordered to provide as corrective action retroactive back pay for only the additional 19 days of the 30-day advance notice period to which she was entitled (she had received 11 days of prior notice). Thus, providing notice and an opportunity to respond when taking an action against a probationer can enhance the likelihood that an agency’s action will stand, albeit only after the merits of the termination are adjudicated on appeal.
 

B. Specify that the Period of an Internship is a Trial or Probationary Period

OPM’s regulations do not specify that, for nonpreference eligible employees in excepted service appointments pending conversion to the competitive service, the period of service prior to any such conversion constitutes the “probationary or trial period” under 5 U.S.C. § 7511(a)(1)(C)(i). Out of an abundance of caution, agencies should consider stating in their internal policies that the period prior to such a conversion is a probationary or trial period. 

Appeal Rights During the Probationary Period

In McCormick v. Air Force, 307 F.3d 1339, (Fed Cir 2002), the U.S. Court of Appeals for the Federal Circuit vacated its prior decision and reversed the Merit Systems Protection Board (MSPB) dismissal of the McCormick appeal for lack of jurisdiction. The Federal Government's petition for a full court rehearing was denied in McCormick v. Air Force, 02-3031 (Fed Cir 2003). The Government has decided not to appeal this case to the Supreme Court.

The Federal Circuit decided in McCormick that an individual qualifies as an "employee" under either subsection (i) or subsection (ii) of section 7511(a)(1)(A) of title 5, United States Code (U.S.C.). Under 5 USC 7511(a)(1) (A), an employee is an individual in the competitive service "(i) who is not serving a probationary or trial period under an initial appointment" or "(ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less." The significance of this case is that some probationary employees could now meet this prerequisite for jurisdiction and have appeal rights to the MSPB.

The McCormick case stemmed from the Air Force terminating Ann McCormick's employment during the 1-year probationary period in her current appointment. McCormick entered the Federal competitive service in June 1991 as a career conditional employee of the Department of Health and Human Services. That appointment was subject to completion of a one-year probationary period, which McCormick completed. On August 30, 1999, she requested a voluntary change of appointment to a position at Tinker Air Force Base. The request for change of appointment was accompanied by a Request for Personnel Action (SF 52), dated August 29, 1999, which referred to the action as a "termination/transfer out." As part of her appointment to the Air Force, the Department issued a Notification of Personnel Action (SF 50), referring to McCormick as a "conditional employee" subject to a one-year probationary period beginning August 29, 1999. On February 22, 2000, her employment with the Air Force was terminated. The crux of the case was whether McCormick, who is not an employee under 5 USC 7511(a)(1)(A)(i), is an employee if she meets the definition provided in (A)(ii). If so, the MSPB has jurisdiction to hear her case. Otherwise, she is a probationer with limited appeal rights, and the MSPB may assert jurisdiction only if McCormick alleges that her removal is due to improper procedures or discrimination based on partisan political reasons or marital status.
 

The Federal Circuit determined that, although McCormick did not meet the definition of employee under (A)(i), she did meet the definition under (A)(ii). Thus, the Board has jurisdiction over the case.

In an unsuccessful petition for a full court hearing, the Government argued that the (A)(i) or (A)(ii) conclusion is contrary to the legislative history of this subsection and the longstanding Office of Personnel Management (OPM) regulation that requires both conditions (i) and (ii).

Since 5 CFR 752.401 and 5 USC 7511 are inconsistent, we advise that you follow the recent Federal Circuit decision in the McCormick case and apply the court's (A)(i) or (A)(ii) conclusion for your actions, until either the statute or OPM regulations change