Federal Manager's Daily Report

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With two of its three seats now filled, the MSPB board has issued its first decision in more than five years, backing an agency in a dispute over the termination of a probationary employee.

The case involved an Army employee whose original appointment SF-50 indicated that she was subject to a 12-month probationary period; during that period employees have very limited rights to appeal firing or other personnel actions. The Army later issued a new SF-50 saying the position was subject to a 24-month probationary period, under a law that took effect several months before the hiring applying to newly hired DoD employees who had not previously completed a probationary period.


The agency began the process to remove the employee just before the 12 months expired although that did not take effect until about a month afterward. An MSPB hearing officer ruled that the employee had completed her probationary period and had gained MSPB appeal rights, and that the Army had deprived her of due process by not giving her an opportunity to respond to the termination letter. The Army then appealed.

The MSPB board ruled that the hearing officer failed to take into account the change in law and that because the removal occurred within 24 months of hiring, the employee had not completed her probationary period and therefore lacked appeal rights. It added that while both the vacancy announcement and the original SF-50 referenced a 12-month period, “the statutes control the Board’s jurisdiction in this case, not the agency’s misstatements.”

The ruling also noted that the standard DoD probationary period is to revert to 12 months beginning in calendar year 2023, under terms of a defense budget measure enacted late last year.

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