Supervisory Roles in Excepted Service Do Not Tack under 5 U.S.C. § 3321 to Satisfy Supervisory Probationary Period in Competitive Service
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
Deborah Mouton-Miller worked for the United States Postal Service (USPS) as an Audit Manager until April 2017, when she transferred to the Department of Homeland Security’s (DHS) Office of Inspector General for a promotion as Supervisory Auditor. Mouton-Miller’s position with USPS was classified as GG-0511-14, step 8, and her position with DHS was classified as GS-0511-14, step 8.
Mouton-Miller’s position as Supervisory Auditor with DHS was subject to a one-year supervisory probationary period. In March 2018, less than one year after Mouton-Miller began her position with DHS, the Inspector General issued to her a notice that she had “performed unsatisfactorily” and “failed to complete [her] supervisory probationary period.” She was then assigned to a nonsupervisory position as a Communications Analyst, classified as GS-0301-14, step 7.
In March 2019, Mouton-Miller appealed the DHS’s action to the Merit Systems Protection Board (Board). She originally filed an individual-right-of-action appeal, but later agreed that her appeal did not fit that category. The administrative judge assigned to the appeal “open[ed] the current adverse action [a]ppeal” under 5 U.S.C. Chapter 75. DHS argued the Board lacked jurisdiction because Mouton-Miller’s reassignment to a nonsupervisory position did not amount to an appealable adverse action.
On August 13, 2019, the administrative judge issued an order finding jurisdiction. The administrative judge explained that Mouton-Miller suffered a reduction in pay, which constituted an adverse action.
Three days later, on August 16, 2019, the administrative judge issued an order to show cause, as the administrative judge was inclined to dismiss for lack of jurisdiction for another reason. Specifically, the administrative judge questioned whether Mouton-Miller’s supervisory service as with USPS could be “tacked” to her supervisory service with DHS under 5 U.S.C. § 3321, resulting in Mouton-Miller completing the supervisory probationary period. The administrative judge noted that 5 U.S.C. § 3321 refers to supervisory appointments made in the “competitive service,” and all positions in USPS fall within the “excepted service.”
Under 5 U.S.C. § 3321(a), the President is authorized to “take such action … as shall provide as nearly as conditions of good administration warrant for a period of probation – (1) before an appointment in the competitive service becomes final; and (2) before initial appointment as a supervisor or manager becomes final.” Section 3321(b) then provides that “[a]n individual – (1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position; and (2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section, shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted.”
DHS argued the Board could not hear Mouton-Miller’s appeal under 5 U.S.C. Chapter 75. It argued that Mouton-Miller’s position with USPS did not constitute competitive service and did not tack. Mouton-Miller argued that the issue was whether she satisfied the definition of “employee” under 5 U.S.C. § 7511(a)(1).
Subsection 7511(a)(1) defines an employee as an individual in the competitive service: “(i) who is not serving a probationary or trial period under an initial appointment; or (ii) except as provided in section 1599e of title 10, who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less.” Mouton-Miller argued this subsection conferred jurisdiction because the Board had previously interpreted “current continuous service” to include both excepted and competitive service.
On September 12, 2019, the administrative judge issued the initial decision. The administrative judge interpreted 5 U.S.C. § 3321 to “not include supervisory service performed in the excepted service,” and determined that the Board lacked jurisdiction to review DHS’s action. The administrative judge’s ruling became the final decision of the Board. Mouton-Miller appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit.
The court of appeals noted that the Board only has statutory jurisdiction to review “adverse actions” under 5 U.S.C. Chapter 75. The court noted that 5 U.S.C. § 7512 provides a list of agency actions that fall within the Board’s jurisdiction, and excludes “the reduction in grade of a supervisor or manager who has not completed the probationary period under section 3312(a)(2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager.” The court explained that for Mouton-Miller’s demotion to be subject to Board review, she needed to complete the probationary period found in 5 U.S.C. § 3312(a)(2).
The court of appeals stated that the regulations accompanying section 3312, 5 C.F.R. §§ 315.901-315.909, state that employees who are “reassigned, transferred, or promoted to another supervisor or managerial position” while in the process of completing a probationary period may count “[s]ervice in the former position … toward completion of the probationary period in the new position.” Thus, according to the court, the regulations generally permit tacking when an individual is reassigned to a second supervisory role after beginning an initial supervisory probationary period.
However, the regulations also explain section 3312 applies to “appointments and positions without time limitation in the competitive civil service.” This expressly limits tacking to two supervisory roles held in the competitive service, and excludes supervisory roles held in the excepted service. Since all positions in USPS fall within the excepted service, the court stated Mouton-Miller cannot tack her former supervisory position at USPS onto her second supervisory position at DHS for purposes of calculating her probationary period.
Because it was undisputed that Mouton-Miller spent less than one year in her supervisory position at DHS, and her previous role at USPS was in the excepted service, the court of appeals concluded that Mouton-Miller did not satisfy the required supervisory probationary period under 5 U.S.C. § 3312, and the Board lacked jurisdiction to review the agency’s action.
The Federal Circuit affirmed the judgment of the Board dismissing the case for lack of jurisdiction.
Read the full case: Mouton-Miller v. Department of Homeland Security
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