Revisiting the Probationary Period
By Phil Varnak
Sunday, March 23, 2008
On Monday, March 17, FedSmith posted an article I wrote entitled "Using the Probationary Period Effectively." The article received several comments from readers but one particular comment gave rise to this writing. An HR Specialist asked, "What effect do you think the fairly recent MSPB decision from Van Wern has for managers?" This aroused my interest since I have not heard of a decision by that name and a search of MSPB decisions did not reveal any recent decisions of that name.
Another reader sent a comment with a reference to two articles written by MSPB which shed light on the question. I believe the HR Specialist was referring to a Federal Circuit decision entitled Van Wersch v. Department of Health and Human Services, 197 F.3d 1144 (Fed.Cir. 1999). As you can see from that cite, the decision is not recent, but some reports by MSPB on that decision are.
Thanks to the second commenter, I obtained copies of two reports prepared by the MSPB for the President and Congress on the subject of the Probationary Period. The first entitled "The Probationary Period: A Critical Assessment Opportunity" was published in August, 2005. "Navigating the Probationary Period after Van Wersch and McCormick" was published in September 2006 and provides guidance that should be required reading for Employee Relations Specialists throughout the Federal Government. These documents provide reinforcement for my original article and the procedures set forth in that article for use during the Probationary Period.
The decision of the Federal Circuit in Van Wersch provided an interpretation of U.S. Code that appears to be clearly stated. However, the wording of the law is not consistent with statements in the Congressional Record which reflected the intent of Congress when the law was actually written. Accordingly, the MSPB report of 2006 correctly states that Congress should clarify the law if Congress desires a meaning different from what is actually written.
The Van Wersch case deals with an employee who was appointed under an excepted appointment authority identified as section 213.3102(u) dealing with a severely physically handicapped individual. The employee was converted from the excepted service appointment to the competitive service where she served for 2 years and 8 months before the agency removed her for allegedly unacceptable conduct. Her appeal to the MSPB was dismissed for lack of jurisdiction upon finding she did not qualify as an "employee" under the Statute. The court reversed MSPB and found that Ms. Van Wersch met the definition of "employee" set forth in 5 U.S.C § 7511(a)(1)(C)(ii) because she had completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less. In making this finding, the court disagreed with long-standing OPM and Board interpretations of the Statute.
The other decision, McCormick v Department of the Air Force, 307 F.3d 1339, 1342-43 ((Fed.Cir. 2002) had very different facts that, to this writer, present more concern for agencies than Van Wersch. In McCormick, the employee was given a career-conditional appointment in HHS on June 2, 1991, subject to completion of a 1-year probationary period, which she completed. On August 30, 1999, McCormick requested a voluntary change of appointment to the position of contract negotiator with the Department of the Air Force. The nature of action on the SF-52 from HHS was identified as "termination/transfer out."
The Air Force noted that McCormick was subject to a 1-year Probationary Period on their Notification of Personnel Action beginning August 29, 1999. On February 22, 2000 the Air Force terminated her employment during her probationary period.
Ms. McCormick also ended up in the Federal Circuit after MSPB dismissed her appeal for lack of jurisdiction. The court found that although Ms. McCormick was serving a probationary period when she was terminated, she was an "employee" with appeal rights because she had completed more than 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. This decision was an interpretation of Section 7511(a)(1)(A)(ii) of the definitions found in 5 U.S. Code and is consistent with the decision in Van Wersch.
After reading the decisions of the Federal Circuit in these cases and the reports from MSPB, the best advice I can provide to Human Resource Specialists is to double-check, and then triple-check, any pending actions against probationers against these decisions. The decisions have changed the practices of OPM and MSPB and will surely change the practices at all Federal agencies concerning probationary period determinations.
One agency, Department of the Army, has advised their Civilian Personnel Offices the following: "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." This is good advice for all agencies to follow.
I do not believe that anything set forth in my article of March 17 should be amended by Van Wersch or McCormick. However, agencies are well-advised to utilize these decisions when making probationary period determinations for current and future employees.
© 2008 Phil Varnak. All rights reserved. This article may not be reproduced without express written consent from Phil Varnak.
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