By Barbara Haga, May 16, 2023
Practitioners often ask me about when an excepted service employee has appeal rights. The answer to this question is not as simple as it might seem.
Let’s look at what excepted service is all about.
Depending on the agencies you have worked for, you may have a different view of what the excepted service covers. Some may be familiar with jobs such as intelligence specialist or attorneys, which are always excepted. Others may work in agencies where authorities to hire Veterans Readjustment Appointees are used frequently. If you work at your agency’s headquarters, you may be familiar with policy-making positions hired under excepted authorities. Presidential Management Fellows and student appointments are also excepted.
Federal hiring around the time of the Civil War was largely accomplished through political patronage. That changed with the passage of the Pendleton Act in 1883, which created a merit-based hiring system known as the competitive service. Even at that time, there were exceptions established to the competitive process in what was identified as Schedules A and B. With passage of the Pendleton Act, only about 10 percent of the Federal jobs were competitive. Over time that number increased, until by 1980 about 90 percent of Federal positions were competitive. According to the MSPB report Federal Appointment Authorities: Cutting through the Confusion, by 2005, only 28 percent of employees entering Federal service came in through a competitive appointment.
5 CFR 213.101 states that excepted service positions are those Executive Branch positions defined by statute, by the President, or by OPM which are not in the Senior Executive Service. Excepted positions are identified as part of Schedules A, B, C, or D. The “Excepted Schedules” are listed in Subpart C of Part 213 of the CFR. As OPM makes adjustments to the jobs in those categories, they have to publish the list of new exceptions established and any that are revoked.
In deciding whether positions should be excepted from competitive service, there are two categories of jobs to be considered. The criteria are listed in 5 CFR 213.102(c). The first group are those where OPM has determined that the positions are indefinitely removed from competitive service because the nature of the work precludes it from being included, for example, because it is impracticable to examine for the knowledge, skills, and abilities required for the job. This category includes positions such as attorneys and chaplains.
The other group are positions that are temporarily removed from the competitive service for the ease of hiring. However, they can convert to competitive service at a later date. That category covers Veterans Reemployment Act (VRA) appointments and appointments of individuals with severe disabilities.
Competitive service positions are subject to the civil service laws passed by Congress in Title 5. Excepted service positions are not covered by the appointment, pay, and classification rules in Title 5. Agencies have considerable latitude in designing personnel systems for excepted positions, although many tend to structure the excepted systems in very similar ways to the competitive processes. While I was researching material for this column, I found one agency’s document which briefly attempts to explain some of the differences between competitive and excepted positions.
There are some basic differences between the two services. One is an employee’s ability to move to another position. Employees with competitive status can move to any other competitive position; they can also voluntarily leave the competitive service and take an excepted service position. However, when this happens, an employee must be informed of the consequences of making the switch. 5 CFR 302.102(b) requires that the agency:
- Notify the individual that the position is excepted, and that acceptance of that position takes him/her/them out of competitive service while in that position; and
- Obtain a written statement from employees that they understand they are leaving voluntarily to accept that excepted appointment.
Assuming the employee held a competitive appointment that would confer reinstatement rights, he/she/they could apply for competitive positions as a reinstatement eligible. Aside from the excepted positions which allow the employee to move into the competitive service, like VRAs, excepted employees may only be appointed in other excepted positions they qualify for. Unless they held a competitive appointment at some other time, they do not have status to apply under merit promotion programs for internal promotions/reassignments.
An excepted employee trying to move to the competitive service would have to be reached through an external hiring mechanism such as an OPM certificate of eligibles or Delegated Examining.
Being an excepted employee also affects an employee’s status in a reduction-in-force (RIF). Page 20 of OPM’s Workforce Reshaping Operations Handbook sums up what happens: “An employee with an excepted service appointment has no assignment rights under OPM’s RIF regulations. However, an agency may elect to provide its excepted service employees with RIF assignment rights.”
Competitive and excepted employees are listed in separate competitive levels based on the excepted authority that was used to hire them. A displaced employee could not move into a competitive position unless he/she/they had personal competitive status from a prior appointment.
Excepted employees serve a trial period rather than a probationary period. The processes can be very different depending on the kind of excepted appointment. Haga@FELTG.com