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MSPB: Probationary Federal Employees, Appeal Rights, and "Tacking"

MSPB: Probationary Federal Employees, Appeal Rights, and "Tacking"

Probationary employees generally have no right of appeal to the Merit Systems Protection Board (MSPB). If, however, the Federal Employee on a probationary period can raise a nonfrivolous allegation that the termination was due to marital status discrimination or partisan political reasons, they will typically be afforded an MSPB appeal and/or hearing. See Von Deneen v. Department of Transportation, 33 M.S.P.R. 420, 422, aff’d, 837 F.2d 1098 (Fed. Cir. 1987) (Table).

Moreover, under 5 C.F.R. § 315.806(b)(2008), Federal employees that are in a probationary period and who have been removed for performance or conduct after appointment may appeal probationary terminations only on grounds that the termination was based on partisan political reasons or marital status.

In most cases, you will know when you have completed your probationary period. Some positions have a one-year probationary period, and others have 2 or 3 year probationary periods, depending on the statutory authority under which you were hired. You can find this information on your SF-50 appointing you to your Federal government job.

In other cases, however, a Federal employee with prior federal civil service will be able to “tack” prior service onto their probationary period to get an MSPB Appeal right.

How does this work? Generally, you have to have prior service in the same line of work, in the same Agency, and with no more than one break in service of less than 30 days. See 5 C.F.R. § 315.802(b)(2008); Youngs v. Department of the Army, 73 M.S.P.R. 551, 558-59 (1997); Raman v. Department of Housing and Urban Development, 34 M.S.P.R. 428, 430-31 (1987), aff’d, 845 F. 2d 1034 (Fed. Cir. 1988)(Table).

There could be other less common situations where you can tack civil service other than that to get an MSPB appeal right, so if you have any prior civil service and are being terminated during a probationary period, you should contact an attorney who practices before the Merit Systems Protection Board (MSPB) to fully explore your appeal right(s). It is imperative that you have copies of your SF-50s to ensure that an attorney can do thorough research into the availability of “tacking” in your case.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

If you are a probationary Federal Employee, and would like to speak with a lawyer about tacking prior Federal Civil Service and/or your rights of appeal to the Merit Systems Protection Board (MSPB), or if you would like to discuss legal representation with an attorney before the MSPB), contact the Law Offices of Eric L. Pines, PLLC.