Ask FELTG: Can Probationary Employees Ever Have MSPB Appeal Rights?
October 1, 2025
Since we started answering your questions through Ask FELTG, we’ve received dozens on the topic of probationary periods. And that includes today’s question:
I’m confused. How is it possible for an employee who is separated during their probationary period to have appeal rights?
And the FELTG answer: Probationers are not yet “employees” under 5 USC § 7511(a)(1) and as such they do not have MSPB appeal rights over their separations. There are, however, three exceptions:
1) The separation was based on pre-appointment reasons,
2) The separation was because of marital status, or
3) The separation was for partisan political reasons.
See 5 CFR §§ 315.804-805.
In addition, there are some positions in the Federal government that require a probationary or trial period, regardless of the employee’s employment history with the government. For example, Federal employees hired under a Direct Hire Authority must serve a probationary period even if they served one in a previous position. However, these employees will retain MSPB appeal rights if they have current continuous employment, excluding service in temporary positions with a duration of two years or less, of:
- One year in the competitive service, or
- Two years in the excepted service, or
- For veterans: one year in either service.
See Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101.
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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
Related training:
- Everything You Need to Know About Probationary Periods, October 31
- MSPB Law Week, December 9-13