The Merit Systems Protection Board (MSPB) recently issued three split decisions interpreting the U.S. Court of Appeals for the Federal Circuit’s decision in McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), pet. for reh’g en banc denied, 329 F.3d 1354 (Fed. Cir. 2003). The MSPB held that when an agency improperly classifies an individual as a probationer rather than a permanent employee, and, therefore, fails to give the individual prior notice and an opportunity to respond to an appealable action, the agency deprives the individual of her property right in her employment. The MSPB reasoned that this deprivation is an abridgement of the individual’s constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond, and that the agency’s action must be reversed.
In McCormick, the Federal Circuit held that an individual in the competitive service is entitled to appeal an adverse action if she: 1) “is not serving a probationary or trial period under an initial appointment;” or 2) “has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.” Thus, a probationer is entitled to appeal a termination if she previously completed one year of current continuous service. In Ellefson v. Department of the Army, DA-315H-01-0169-I-1 (2/28/05), the MSPB defined the term “current continuous service” as a period of employment immediately preceding an adverse action without a break in federal civilian employment. The MSPB also held it would allow individuals to “tack” on prior service to a probationary period if the employee shows that the prior service: 1) was rendered immediately preceding the appointment; 2) was performed in the same agency; 3) was performed in the same line of work; and 4) was completed with no more than one break in service of less than 30 days.
In Ellefson, the MSPB concluded that when agencies fail to recognize an individual as a permanent employee, and, therefore, fail to give the employee notice of an proposed adverse action and an opportunity to respond, it abridges the employee’s constitutional right to minimum due process of law. The MSPB held that if the agency’s procedures for the separation do not comport with an employee’s constitutional right to minimum due process of law, the agency’s separation action must be reversed. Likewise, in Gardner v. Department of Defense, DC-315H-02-0195-I-1 (3/2/05), the MSPB held that an appellant who completed 1 year of current continuous service was entitled to an opportunity to present a response to a notice of proposed termination. Because the agency failed to provide this opportunity to respond, the MSPB reversed the agency’s termination action.
Lastly, in the McCormick case, which was remanded to the MSPB, the appellant had received prior written notice of her proposed separation and was afforded an opportunity to reply in writing within 5 calendar days. See No. DA-315H-00-0317-M-1 (2/28/05). However, she was separated 11 days after the issuance of the proposal notice. The MSPB found that while the agency’s procedures comported with due process because she received notice of the action and an opportunity to respond, the appellant was entitled to be retained in a pay status for 30 days after her termination was proposed. The MSPB, therefore, ordered the agency to give the appellant an additional 19 days of back pay retroactively.
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