MSPB Holds that Agency Has Authority to Require a One-Year Probationary Period in the Absence of an Affirmative Statutory or Regulatory Provision

A Department of Defense (“DoD”) employee received a career-conditional appointment effective on January 31, 2011. On January 24, 2012, the agency informed the employee that it was terminating her employment for unacceptable performance effective January 28, 2012. The employee appealed to the Merit Systems Protection Board (“MSPB”), and an MSPB administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. Specifically, the MSPB administrative judge found that the Board lacked jurisdiction because the statutory hiring authority through which the employee was hired qualified as a special appointing authority under 5 CFR § 315.801(e), and that the employee was therefore required by agency regulations to serve a 1-year probationary period before gaining MSPB adverse action appeal rights. The employee filed a timely petition for review to the full Board arguing that she was not required to complete a probationary period because she was not appointed by a special appointing authority or from a competitive list of eligibles. The Board solicited and considered additional evidence from the parties concerning the manner in which the employee was selected for her position. On January 29, 2014, the Board denied the employee’s petition for review and affirmed a modified version of the administrative judge’s initial decision.

In response to the Board’s solicitation of additional evidence and in support of its argument that the employee (whom the agency contended was hired under a direct-hire authority) must complete a 1-year probationary period before gaining adverse action appeal rights, the agency cited a fact sheet on the Office of Personnel Management’s (“OPM”) website which states just that: employees hired pursuant to a direct-hire authority are required to serve a 1-year probationary period.

After reviewing the agency’s submission, the employee filed a response in which she asserted for the second time that she was not appointed from a list of eligibles and that the hiring authority used for her selection (a special appointing authority) was not included in either of the two applicable regulations, 5 CFR Subpart 315F or 5 CFR Subpart 315G. The employee argued that because she was hired by an authority outside these two subparts, her hiring was not subject to 5 CFR § 315.801(e), the regulation that lists when a probationary period is required.

The Board’s effort to analyze whether the employee was required to serve a probationary period began with 5 USC § 7511(a)(1) for the definition of an employee with adverse action appeal rights. That definition states that an employee appointed to a competitive service position has appeal rights if she “is not serving a probationary or trial period under an initial appointment,” or “has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.” The Board found that these dual definitions are “alternative” definitions, meaning that an employee must only satisfy one of the two definitions in order to qualify for appeal rights to the Board.

As the Board noted, “most commonly, an employee who is competitively hired from a list of eligible candidates pursuant to 5 CFR § 315.301 is required to serve a 1-year probationary period.” Because the agency failed to present any evidence which would suggest that the employee was chosen for her position from a list of eligible candidates, however, the Board found that she was not required to serve a probationary period pursuant under 5 CFR § 315.801(a).

The Board turned next to whether the employee was required to serve a probationary period under 5 CFR § 315.801(e), which states that “a person who is appointed to the competitive service either by special appointing authority or by conversion under subparts F or G of this part serves a 1-year probationary period unless specifically exempt from probation by the authority itself.”

Because the Board, in Tschumy v. Department of Defense, 104 M.S.P.R. 488 (2007), had previously interpreted the language of section 315.801(e) to refer only to the specific special appointing authorities outlined in subparts 315F and 315G, it disagreed with the MSPB administrative judge’s finding that the employee was hired under a special appointing authority. Therefore, the Board also found that the employee was not required to serve a 1-year probationary period under 5 CFR § 315.801(e) and so modified the administrative judge’s initial decision with respect to whether the employee was required to serve a probationary period via her appointment by a special appointing authority.

The Board identified the hiring authority used to hire the employee as DoD’s expedited hiring authority outlined in 10 U.S.C. § 1705(g)(1)(A)-(B). The statute which serves as hiring authority and OPM’s regulations addressing such appointees are both silent as to whether a probationary period is necessary. Despite the silence of the statutes and regulations, the agency, when hiring the employee, had issued an SF-50 stating that the appellant was required to serve the probationary period.

The Board concluded that “the absence of an affirmative statutory or regulatory provision requiring a career-conditional appointee to the competitive service to serve a probationary period does not preclude an agency from imposing a 1-year probationary period [emphasis added].” In support of their conclusion, the Board cited Shelton v. Department of the Air Force, 382 F.3d 1335, 1336-37 (Fed. Cir. 2004). Shelton was a case in which the agency required an employee to serve a probationary period under the “special circumstances” of her employment: a 13-year break in service before being reinstated at the same position. In that case, the Federal Circuit agreed with the agency: “Imposition of a reasonable condition to accommodate a special circumstance is not an illegal employment action. A new probationary period was not an unreasonable condition after thirteen years away from the job.”

Observing that the agency’s probationary period requirement brought the employee in line with the overwhelming majority of first-time career-conditional competitive service selectees, the Board found that under the unique circumstances of this case (DoD expedited hiring), the agency’s requirement was a “reasonable condition” of her employment. The Board found that the SF-50 memorializing the employee’s appointment confirmed both the agency’s imposition of the 1-year probationary period and that the effective start date was not one year or more from the date of her termination.

Although OPM’s Federal Personnel Manual (“FPM”) is obsolete (but still persuasive under narrow circumstances, according to the Board), this prior interpretive guidance was used in the Board’s holding. The FPM explained that a direct-hire appointee was required to serve a 1-year probationary period, and the Board found nothing to support the view that a direct-hire career-conditional appointee should acquire immediate adverse action appeal rights to the Board.

For the above stated reasons, the Board affirmed the MSPB administrative judge’s initial decision as modified to reflect that instead of an applicable statutory or regulatory requirement governing the imposition of a 1-year probationary period before gaining access to adverse action appeal rights, the special circumstances of the employee’s hiring gave the agency discretion to impose a 1-year probationary period at the time of hiring.

Read the full case, Calixto v. Department of Defense.


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC. 

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of private sector and federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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