[Federal Register Volume 72, Number 83 (Tuesday, May 1, 2007)]
[Proposed Rules]
[Pages 23772-23775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8061]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 83 / Tuesday, May 1, 2007 / Proposed
Rules
[[Page 23772]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 315 and 752
RIN 3206-AL30
Career and Career-Conditional Employment and Adverse Actions
AGENCY: Office of Personnel Management.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) proposes to amend its
regulations governing Federal adverse actions. The proposed regulations
would conform the adverse action rules regarding employee coverage to
binding judicial decisions interpreting the underlying statute.
DATES: Submit comments on or before July 2, 2007.
ADDRESSES: Send or deliver written comments to Ana A. Mazzi, Deputy
Associate Director for Workforce Relations and Accountability Policy,
Office of Personnel Management, 1900 E Street, NW., Room 7H28,
Washington, DC 20415; by FAX to 202-606-2613; or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Sharon L. Mayhew by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Section 7514 of title 5, United States Code
(U.S.C.), provides the statutory authority for OPM to prescribe
regulations pertaining to adverse actions in the competitive or
excepted service. In addition, these regulations are found at title 5,
Code of Federal Regulations (CFR), part 752, subpart D, and are the
subject of this interim final rule. Corresponding and related
regulations pertaining to probationary periods are found at 5 CFR part
315, subpart H, and also are the subject of this proposed rule.
Amendments To Clarify Adverse Action Rules Regarding Employee Coverage
Background--New Interpretation of the Statute--Van Wersch and McCormick
Two decisions of the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit or Court), Van Wersch v. Department of Health and
Human Services, 197 F.3d 1144 (Fed. Cir. 1999) and McCormick v.
Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), pet. for
reh'g in banc denied, 329 F.3d 1354 (Fed. Cir. 2003) caused us to
revise the pre-existing interpretation of 5 U.S.C. 7511(a)(1), and
invalidated portions of the adverse actions regulations at 5 CFR part
752. The effect of these Federal Circuit opinions is to provide
additional procedural and appeal rights to individuals who are working
in a probationary period in the competitive service and in a trial
period in the excepted service. OPM is proposing to change its
regulations to conform to the Court's interpretation of the statute.
The pertinent statutory text appears below:
5 U.S.C. Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``Employee'' means--
(A) 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;
(B) A preference eligible in the excepted service who has
completed 1 year of current continuous service in the same or
similar positions--
(i) In an Executive agency; or
(ii) In the United States Postal Service or Postal Rate
Commission; and
(C) An individual in the excepted service (other than a
preference eligible)--
(i) Who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service;
or
(ii) Who has 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;
An individual who meets this definition of ``employee'' is entitled
to certain procedural and appeal rights when he or she is the subject
of an adverse action (e.g., removal, certain types of suspension,
reduction in grade, reduction in pay, and furlough of 30 days or less).
These rights include: (1) At least 30 days' advance written notice of
the reason for a proposed adverse action; (2) a reasonable time, but
not less than 7 days, to answer orally and in writing; (3) the right to
be represented by an attorney or other representative; (4) a written
decision and the specific reasons for the decision at the earliest
practicable date; and (5) a right to appeal to the Merit Systems
Protection Board (MSPB or the Board). Individuals who do not meet this
definition are not afforded all of these rights.
Before the Court issued Van Wersch and McCormick, OPM and the MSPB
interpreted the statute to exclude probationary or trial period
employees from receiving the same rights as employees who have
completed their probationary or trial period. Probationary and trial
periods are essential for management to assess an individual's
performance prior to granting full employment rights. Specifically, OPM
regulations did not afford full employment rights to an individual in
the competitive service who failed to meet one of the conditions of 5
U.S.C. 7511(a)(1)(A), or an individual in the excepted service who
failed to meet one of the conditions of 5 U.S.C. 7511(a)(1)(C). Thus,
for example, an individual in the competitive service serving in a
probationary period was not an ``employee'' for purposes of 5 CFR part
752, nor was an individual who did not complete one year of current,
continuous service under other than a temporary appointment limited to
one year or less. Likewise, an individual in the excepted service
serving a probationary or trial period was not an ``employee'' for
purposes of 5 CFR part 752, nor was a nonpreference eligible who did
not complete two years of current, continuous service under other than
a temporary appointment limited to two years or less.
Contrary to this interpretation, the Federal Circuit in Van Wersch
held that an individual in the excepted service could meet the
definition of ``employee'' if he or she met either of the two
conditions listed at 5 U.S.C. 7511(a)(1)(C). Ms. Van Wersch was removed
from Federal employment for alleged unacceptable conduct. At the time
of her removal, she was serving a probationary or trial period under an
initial excepted service appointment
[[Page 23773]]
pending conversion to the competitive service and therefore was
excluded from coverage under 5 U.S.C. 7511(a)(1)(C)(i). Ms. Van Wersch
had been hired as a Clerk-Typist pursuant to 5 CFR 213.3102(u), which
allowed agencies to appoint severely handicapped persons to excepted
service positions. Employees hired under this authority may qualify for
conversion to competitive status after they have completed two years of
satisfactory service. Ms. Van Wersch served over two years in this
position but was not converted to competitive status.
The Federal Circuit addressed the question of whether an
individual, like Ms. Van Wersch, serving in a probationary or trial
period and therefore excluded from the definition of ``employee'' under
5 U.S.C. 7511(a)(1)(C)(i), could still be considered an employee, with
full adverse action rights, if she met only the criteria of 5 U.S.C.
7511(a)(1)(C)(ii). The Government argued that Congress had not intended
to extend employee appeal rights to excepted service personnel, such as
Ms. Van Wersch, who were serving in probationary or trial positions
pending conversion to the competitive service. While recognizing that
the Government made a compelling case for its reading of the statute
based on the legislative history, the Court rejected the Government's
argument, holding that Congress had not used language that effectuated
the putative legislative intent and that courts are not authorized to
look at Congressional intent when the language of the statute was clear
and unambiguous. Van Wersch v. Department of Health and Human Services,
197 F.3d 1144, 1152 (Fed.Cir. 1999). Because Ms. Van Wersch literally
met what the Court determined was an alternative definition of
``employee'' in 5 U.S.C. 7511(a)(1)(C)(ii), the Court concluded that
she was an employee under the statute and therefore had the right to
appeal her termination to the MSPB. Id. at 1151. The Federal Circuit
also noted that ``if Congress determines that individuals in Ms. Van
Wersch's position should not have the right to appeal adverse actions
to the Board, it can amend Sec. 7511(a)(1)(C) so as to compel a result
different from the one we reach today.'' Id. at 1152.
The Federal Circuit applied the Van Wersch analysis to the
competitive service in McCormick v. Department of the Air Force, 307
F.3d 1339 (Fed. Cir. 2002), pet. for reh'g denied, 329 F. 3d 1354 (Fed.
Cir. 2003) and found the appellant qualified as an employee under 5
U.S.C. 7511(a)(1)(A)(ii) even though she failed to qualify under (i).
Ms. McCormick previously was a competitive service employee at the
Department of Health and Human Services (DHHS) before voluntarily
moving to a new position at the Department of the Air Force. Her new
competitive service appointment was subject to a one-year probationary
period. Ms. McCormick was terminated during this probationary period.
On appeal, Ms. McCormick argued that, while she did not meet the
definition of an employee under 5 U.S.C. 7511(a)(1)(A)(i), she did meet
the definition of 5 U.S.C. 7511(a)(1)(A)(ii), based on her DHHS
employment.
The Court held that ``[t]he panel is bound by the court's earlier
decision in Van Wersch.'' Id. at 1342. Thus, the Federal Circuit
concluded that Ms. McCormick met the definition of ``employee'' under 5
U.S.C. 7511(a)(1)(A)(ii), having completed more than 1 year of current
or continuous service under other than a temporary appointment limited
to 1 year or less, and therefore was to be afforded all the rights of
an employee. Id. at 1343.
Conforming the Adverse Action Regulations to the New Statutory
Interpretation
As yet, Congress has not accepted the Court's invitation to amend
these provisions. Therefore, to eliminate potential confusion, OPM
proposes to amend the regulations at 5 CFR part 752 to conform to the
existing Federal Circuit case law described above.
[0]We therefore propose to make four amendments to the text of
paragraphs (c) and (d) of 5 CFR 752.401, to clarify the definition of
``employee'' for purposes of the adverse action rules. Three amendments
are required to conform to the holding in McCormick, and one amendment
is necessary to conform to Van Wersch
First, to conform with McCormick's holding that an individual
serving in the competitive service on a probationary period may meet
the definition of an ``employee,'' we propose to amend paragraph (c)(1)
at Sec. 752.401, to state that a career or career conditional employee
in the competitive service who is not serving a probationary or trial
period is a covered employee. We propose adding the phrase, ``career or
career conditional'' here to address recent cases in which individuals
serving in positions not subject to a probationary or trial period have
attempted to establish that they are ``employees'' within the meaning
of the statute because they are not serving a probationary or trial
period under an initial appointment. See e.g., Johnson v. Department of
Veterans Affairs, 99 MSPR 362 (2005). Such a conclusion would produce
an unreasonable result in that every temporary appointee would have a
right to advance notice, an opportunity to respond, and the right of
appeal, on his or her first day of work. This is contrary to OPM's
interpretation of the phrase, ``who is not serving a probationary or
trial period under an initial appointment,'' as applying only to
individuals serving in positions that are subject to a probationary or
trial period. The legislative history supports this interpretation and,
accordingly, OPM explicitly continues its existing interpretation of
the statute in this respect. We note that the MSPB adopted this
interpretation in Johnson.
Second, we propose to add a new Sec. 752.401(d)(13) to clarify
that a competitive service employee who is serving a probationary or
trial period does not meet the definition of ``employee'' unless he or
she has completed one year of current continuous service under other
than a temporary appointment limited to one year or less.
The McCormick decision also requires an amendment to paragraph
(c)(2) of 5 CFR 752.401, which currently identifies as a covered
employee, an individual ``in the competitive service serving in an
appointment that requires no probationary or trial period, and who has
completed one year of current continuous service in the same or similar
positions under other than a temporary appointment limited to 1 year or
less.'' We propose to remove the phrase, ``serving in an appointment
that requires no probationary or trial period, and'' to comport with
the Court's ruling in McCormick.
To comply with Van Wersch, the final amendment would add modifying
language to paragraph (d)(11) to make it clear that a nonpreference
eligible excepted service employee, who is serving a probationary or
trial period pending conversion to the competitive service, does not
meet the definition of ``employee'' unless he or she has completed two
years of current continuous service under other than a temporary
appointment limited to two years or less.
Conforming Part 315 to the New Statutory Interpretation
We are also proposing to change part 315, Career and Career
Conditional Employment, to make the regulations governing probationary
periods consistent with the change in the definition of ``covered
employee.''
[[Page 23774]]
Additional Regulatory Clarification Required by Payano
OPM is proposing to remove the phrase ``in the same or similar
positions'' from the regulation at the amended paragraph 5 CFR
752.401(c)(2), and also from the definition of ``current continuous
employment'' at 5 CFR 752.402. This change addresses language in the
current regulations concerning individuals in the competitive service
that requires that ``continuous service'' be in ``the same or similar
positions.'' That language is not found in the statute. This issue
arose in administrative litigation before the MSPB. See Payano v.
Department of Justice, 100 MSPR 74 (2005). The issue in that case was
whether an employee could ``tack on'' the time served in another
competitive service position that was not the same as or similar to the
position from which he was removed, for the purpose of determining
whether or not he was an employee. The MSPB held that an agency was
required to take this time into account in determining whether a person
in the competitive service was an ``employee.'' OPM has determined that
this interpretation of the statute is the best one and is proposing to
change the regulations to reflect that view.
Public Participation
OPM invites interested persons to participate in this proposed
rulemaking by submitting written comments, data, or views.
Before finalizing these proposed amendments, we will consider all
comments received on or before the closing date for comments. We will
consider comments filed late if it is possible to do so without
incurring expense or delay. We may change these proposed amendments in
light of the comments we receive.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 12866.
Regulatory Flexibility Act
OPM has determined these amendments will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects
5 CFR Part 315
Government employees.
5 CFR Part 752
Administrative practice and procedure, Government employees.
Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM proposes to amend parts 315 and 752 of title 5,
Code of Federal Regulations, as follows:
PART 315--CAREER AND CAREER CONDITIONAL EMPLOYMENT
1. The authority for part 315 continues to read:
Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218, unless otherwise noted; and E.O. 13162;
secs, 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652.
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec
315.603 also issued under 5 U.S.C. 8151. Sec 315.605 also issued
under E.O. 12034, 3 CFR, 1978 Comp., p. 111. Sec 315.606 also issued
under E.O. 11219, 3 CFR, 1964-1965 Comp., p. 303. Sec 315.607 also
issued under 22 U.S.C. 2506. Sec 315.608 also issued under E.O.
12721, 3 CFR, 1990 Comp., p. 293. Sec. 315.610 also issued under 5
U.S.C. 3304(d). Sec 315.611 also issued under Section 511, Pub. L.
106-117, 113 Stat. 1575-76. Sec 315.708 also issued under E.O.
13318. Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp.,
p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3
CFR, 1978 Comp., p. 264.
2. Revise Sec. 315.803 to read as follows:
Sec. 315.803 Agency action during probationary period (general).
(a) The agency shall utilize the probationary period as fully as
possible to determine the fitness of the employee and shall terminate
his services during this period if he fails to demonstrate fully his
qualifications for continued employment.
(b) Termination of an individual serving a probationary period must
be taken in accordance with subpart D of part 752 of this chapter if
the individual has completed one year of current continuous service
under other than a temporary appointment limited to 1 year or less and
is not otherwise excluded by the provisions of that subpart.
3. Revise Sec. 315.804 (a) to read as follows:
Sec. 315.804 Termination of probationers for unsatisfactory
performance or conduct.
(a) Subject to Sec. 315.803(b), when an agency decides to
terminate an employee serving a probationary or trial period because
his work performance or conduct during this period fails to demonstrate
his fitness or his qualifications for continued employment, it shall
terminate his services by notifying him in writing as to why he is
being separated and the effective date of the action. The information
in the notice as to why the employee is being terminated shall, as a
minimum, consist of the agency's conclusions as to the inadequacies of
his performance or conduct.
* * * * *
4. Revise Sec. 315.805 introductory text to read as follows:
Sec. 315.805 Termination of probationers for conditions arising
before appointment.
Subject to Sec. 315.803(b), when an agency proposes to terminate
an employee serving a probationary or trial period for reasons based in
whole or in part on conditions arising before his appointment, the
employee is entitled to the following:
* * * * *
PART 752--ADVERSE ACTIONS
1. The authority for part 752 continues to read:
Authority: 5 U.S.C. 7504, 7514, and 7543.
2. Revise Sec. 752.401 (c)(1) and (2), (d)(11) and (12), and add
(d)(13) to read as follows:
Sec. 752.401 Coverage.
(a) * * *
(b) * * *
(c) * * *
(1) A career or career conditional employee in the competitive
service who is not serving a probationary or trial period;
(2) An employee in the competitive service who has completed 1 year
of current continuous service under other than a temporary appointment
limited to 1 year or less;
* * * * *
(d) * * *
* * * * *
(11) A nonpreference eligible employee serving a probationary or
trial period under an initial appointment in the excepted service
pending conversion to the competitive service, unless they meet the
requirements of paragraph (c)(5) of this section;
(12) An employee whose agency or position has been excluded from
the appointing provisions of title 5, United States Code, by separate
statutory authority in the absence of any provision to place the
employee within the coverage of chapter 75 of title 5, United States
Code; and
(13) An employee in the competitive service serving a probationary
or trial period, unless they meet the requirements of paragraph (c)(2)
of this section.
[[Page 23775]]
3. Revise Sec. 752.402 (b) to read as follows:
Sec. 752.402 Definitions.
(a) * * *
(b) Current continuous employment means a period of employment or
service immediately preceding an adverse action without a break in
Federal civilian employment of a workday.
* * * * *
[FR Doc. E7-8061 Filed 4-30-07; 8:45 am]
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