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

Content last reviewed: 6/20/2006-FMJ

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This page was last revised: 6/20/2006