(Credit: istockphoto.com/filadendron)
No. 1
When Does an Employee Become an Employee?
By Maria D. Esparraguera
“Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself . . . ” 1
—Chief Justice John Marshall
When does an applicant become a federal employee? If an entrance on duty (EOD) reporting date is delayed through no fault of the applicant, is there a legal basis to retroactively adjust an EOD to reflect the report date? Or, would the EOD be the date that the applicant actually in-processed and took the oath of office? In 1803, the actions necessary to give validity to a federal appointment ultimately resulted in the Supreme Court’s establishment of the doctrine of judicial review.2
Constitutional questions aside, let us consider hypothetical applicants, Apollo Creed and Rachel Chu, who have both applied for federal positions from the private sector. Both received final job offers from the Civilian Personnel Advisory Center (CPAC) and accepted them. Both went online to complete the registration process with an EOD date of 17 September 2018. On 14 September 2018, Hurricane Florence struck the U.S. East Coast. As a result, some federal offices were closed.
On 17 September 2018, Apollo Creed was to report to a South Carolina military base, but the building and offices were closed. In anticipation of the storm, on 13 September 2018, he was provided a password to the organization’s website for weather updates, but on 17 September 2018, he notified the CPAC that the website was not working. On that same day via email, the CPAC informed him that, tentatively, he was to report on Monday, 24 September 2018. On 19 September 2018, he asked for an update and was told to report at 1000 on 25 September 2018. His supervisor provided a statement that, throughout the storm, Mr. Creed also participated in twice-daily “accountability exercises.” The South Carolina base remained closed and no one performed work other than employees on current telework agreements. Ultimately, those working for the organization who were federal employees prior to 17 September 2018 were paid, regardless of whether they performed work. On 25 September 2018, when the building opened, Mr. Creed reported and took the oath of office.
Rachel Chu was to report to a North Carolina base. That office did not suffer the same effects from the storm as the South Carolina base. As a result, the North Carolina base was open on 17 September 2018 at 1000. However, on Wednesday, 12 September 2018, the CPAC contacted her and told her not to report on Monday, 17 September 2018, due to the hurricane. Ms. Chu’s supervisor contacted her on Friday, 14 September 2018, and found out that the CPAC told her not to report. On Monday, 17 September 2018, her supervisor called CPAC for clarification. The supervisor then contacted Ms. Chu and advised her to report the next day. On Tuesday, 18 September 2018, Ms. Chu took the oath of office, backdating the documentation for 17 September 2018. Subsequently, the CPAC advised that the documents could not be back-dated; they were corrected to reflect 18 September 2018.
Organization leadership argued that since both employees were in receipt of a firm offer with a report date of 17 September 2018, this date should be honored as the commencement of federal employment. They cited the OPM Guide to Processing Personnel Actions (OPM Guide):3
4-1 Appointments to Federal Service
[A]ppointments to positions in the civil service are effective only from date of acceptance and entrance on duty, unless a later date is stated on the Standard Form 52 . . . or other approving document . . . .
4-2 Date of Acceptance
Acceptance may be shown by formal acceptance, by entry on duty, or by taking the oath of office. Date of acceptance is the date the applicant accepts, either orally or in writing, the appointment offer . . . .
4-3 Entrance on Duty (EOD)
a. Entrance on Duty is the process by which a person completes the necessary paperwork and is sworn in as an employee . . . .
The organization’s analysis centered on the language above stating that acceptance is demonstrated by formal acceptance of the offer or by taking the oath of office. They did not distinguish between “acceptance” and “appointment” to civil service, nor did they acknowledge the wording of subchapter 4-1, which states that appointments to civil service are effective from the date of acceptance and entrance on duty.
They offered one case in support of their position. In a 1966 decision, Administrator, Federal Aviation Administration,4 the Comptroller General held that appointment acceptance was the start of federal employment when there was acceptance of a position on Sunday and the following day was a federal holiday. The issue was whether the appointee would be paid for the holiday. In that case, the employee accepted the position on a Sunday, but did not take the oath of office or report to work until Tuesday after the holiday. The Comptroller General noted that “the appointment alone does not vest him with the position,” but that if:
[T]here is evidence which establishes that any particular employee actually accepted the tendered appointment, either verbally or otherwise on Sunday, then he would be entitled to pay for the pay for the Monday holiday notwithstanding that he did not take the oath of office and report for duty until Tuesday and there would be administrative discretion to deny him pay for the Monday.5
The Comptroller General ultimately did not award pay for the holiday, but ordered that the agency consider the evidence and make a determination accordingly. Subsequent decisions have essentially overruled this holding.
Under the OPM Guide, federal appointments are effective only from date of acceptance and entrance on duty.6 It also states that the entrance on duty is the process by which a person completes the “necessary paperwork and is sworn in as an employee.”7 Paragraph 4-3.c. provides that the oath of office and appointment affidavit are “executed” when the appointee “enters on duty” and are given by an official who has been delegated responsibility to administer oaths.8
The organization requesting the retroactive appointment cited the OPM Guide, paragraph 4-2, for support that appointment can be made either by formal acceptance or entry on duty.9 That paragraph discusses acceptance, not appointment.
Taken in totality, based on the complete language of the OPM Guide, an oath of office is required for a federal appointment. To interpret it differently would disregard the requirement in paragraph 4-3.a. for both necessary paperwork and swearing in.10 “Acceptance” of a civil service position is different from “appointment,” in that acceptance will govern whether an applicant has demonstrated acceptance of the offer of employment. This becomes critical for purposes of determining whether an offer should then be issued to another applicant. In order to execute a personnel action effecting commencement of civilian employment, there must be completion of all steps required by law or regulation.
A subsequent (1972) Comptroller General decision ordered back pay where a job offer was erroneously withdrawn after initial acceptance.11 In that case, Walter Dean was informed that he was to start as a Customs Officer on 12 March 1971.12 On 9 March 1971, he was informed that his offer was withdrawn.13 On 12 March 1971, Mr. Dean presented himself for work and was barred from entry.14 Several months later, the Civil Service Commission (predecessor of the U.S. Merit Systems Protection Board (MSPB)) found that Mr. Dean had been legally appointed to the position on 12 March 1971 and that the Customs office had “improperly prevented him” from reporting for duty.15 The Back Pay Act states that if an employee of an agency is found by “appropriate authority under applicable law or regulation” to have undergone an “unjustified or unwarranted personnel action,” they would be entitled to back pay.16 Based on the Civil Service Commission’s determination, the Comptroller General ordered back pay.17
Other 1970s Comptroller General decisions narrowed this holding. In Leonard Ross—Claim for Back Pay, an applicant’s EOD was delayed by two weeks because the Agency had failed to comply with its union agreement as to the length of time for posting of the vacancy announcement.18 Mr. Ross had been notified that he was selected for a position with the Department of Agriculture with an EOD of 16 December 1974.19 The afternoon of 12 December 1974, he was notified that his EOD would be 26 December 1974.20 The claim for back pay was denied:
As a general proposition, one is not entitled to compensation until his appointment has been fully consummated by taking the oath of office. We have recognized an exception where one enters on duty and performs actual work prior to appointment, finding in that situation that his taking oath of office related back to the date of his entrance on duty, B-181294, November 8, 1974. However, in the case where an employee has not actually entered on duty, he may be compensated only to the extent that his non-performance of work is the consequence of his having undergone an unjustified or unwarranted personnel action within the terms of the Back Pay Act.21
The Comptroller General differentiated Ross from its previous decision in Dean,22 which ordered back pay based on an administrative decision by the Civil Service Commission that there was an “unwarranted” personnel action. In Ross, the claim for back pay was denied because the delay resulted from required compliance with a bargaining agreement.23 Therefore, Mr. Ross had not undergone an unjustified or unwarranted personnel action.
In Raymond J. DeLucia,24 an applicant who was given an employment offer and a firm EOD date was not entitled to a retroactive appointment despite withdrawal of the offer, delay, and subsequent appointment. Mr. DeLucia’s firm EOD date of 25 March 1974 was withdrawn on 21 March 1974 because of a large number of applicants to be processed. He alleged that an administrative error had delayed his appointment and that he should be compensated the back pay. In denying the relief, the Comptroller General stated:
An offer of public employment does not give rise to a contractual relationship in the conventional sense…As a general proposition, one is not entitled to compensation until his appointment has been fully consummated by taking the oath of office. We have recognized an exception where one enters on duty and performs actual work prior to appointment.
. . . .
[I]n the ordinary case the decision to appoint or promote an individual in the Federal service is left to the discretion of the employing agency, and we have held that in such case the agency’s action in not hiring or promoting the individual on the date he expected or would have preferred, does not constitute an “unjustified or unwarranted personnel action” under the Back Pay Act. This is so even though it appears that the appointment or promotion may have been delayed through error or an unusually heavy agency workload in the processing of personnel actions.25
Based on this rationale, administrative error leading to a delay in EOD does not rise to a level high enough to result in retroactive appointment to federal service.
In the hypothetical, Mr. Creed, who was to report to the South Carolina base, did not report on 17 September 2018 because the building and offices were closed. The offices remained closed and no one in the building performed work, nor did they in-process Mr. Creed or administer his oath of office. He took the oath of office on 25 September 2018 when the building opened. Under these circumstances, it is difficult to argue that the delay in his EOD was either “unjustified” or “unwarranted.” The hurricane closed the South Carolina base, not any overt act by the Army; therefore, he was not “improperly prevented” from reporting for duty.
Ms. Chu was to report to the North Carolina base. That office did not suffer the same effects from the storm as the South Carolina base. As a result, the building reopened on 17 September 2018 at 1000. However, on 12 September 2018, the CPAC contacted her and told her not to report due to the hurricane. On 17 September 2018, her supervisor called her and advised her to report the next day. On 18 September 2018, Ms. Chu took the oath of office.
In Ms. Chu’s case, her duty station was operating, but the CPAC’s mistake in calling her and telling her not to report was argued as an administrative error. Ms. Chu’s situation is factually similar to DeLucia,26 where an administrative error caused a delay in EOD. In DeLucia, an administrative error did not entitle the applicant to a retroactive appointment.27 Subsequent cases further restricted retroactive adjustment of hiring dates/pay based on the definition of “employee” in 5 U.S.C. § 2105(a).28
The United States Court of Appeals, D.C. Circuit, in National Treasury Employees Union (NTEU) v. Reagan, denied retroactive appointment to applicants who were notified that they were selected for federal positions and given EOD dates.29 Prior to their EOD, the offers were revoked because of a hiring freeze.30 The D.C. Circuit determined that they were not entitled to retroactive pay.31 In that case, the court agreed that the applicants were “appointed” to positions, although it was determined that the appointments could be withdrawn prior to EOD.32 In order to warrant relief, the court held that the appointees had to meet the 5 U.S.C. §2105(a) definition of “employee.”33 Under the statute, which applies to Title 5 in its entirety, the court held that employees are (1) appointed in the civil service, (2) engaged in the performance of a federal function, and (3) subject to the supervision of a federal employee.34 Because they did not report for EOD, the applicants in the case were not considered “employees” and were not entitled to pay.35
The MSPB has statutory jurisdiction over actions taken against employees, not applicants. Consequently, many MSPB decisions also examine 5 U.S.C. §2105(a) to determine when applicants become employees.36
To be a government employee under 5 U.S.C. §2105, it must be demonstrated that (1) the appointment actually occurred; that is, it was approved by an authorized appointing official aware that they were making the appointment, (2) the applicant took some action denoting acceptance of the appointment, and (3) the appointment was not revoked before the person performed in the position.37 A federal appointment occurs when the appointing authority has performed the last act to effect the appointment.38
In Robert McCarley v. MSPB, an applicant sought to demonstrate that he was an employee because he received a job offer that was withdrawn when he reported for duty.39 The Federal Circuit Court of Appeals held:
There is a clear difference between being an appointee and an employee, and the lines are drawn by [5 U.S.C. §] 2105. One may be an appointee and never achieve the status of employee. There are three elements of the statute and all must be complied with to achieve the status of an employee . . .
. . . .
Back pay therefore cannot be awarded to an appointee who has not qualified as an employee by performing a federal function subject to the supervision of a federal employee. Such payment for work he did not perform, because the appointment was revoked before he did any supervised work, would be illegal.40
The Comptroller General has also applied the definition of “employee” under 5 U.S.C. § 2105 in decisions subsequent to 1980. In Rodgers D. O’Neill: Entitlement to Military Leave Prior to Appointment, Mr. O’Neill had a firm offer, acceptance, and an EOD date of 27 July 1980.41 On 26 July 1980, he received orders to report for military training at his reserve unit.42 He remained on active duty until 10 August 1980, when he reported for duty for the civilian position.43 The decision held that “it has long been the general rule that an appointment is effective only after the appointee has accepted the appointment and actually entered on duty.”44
The Comptroller General decision most similar to the current case is Harry Olson.45 The Olson decision denied an individual’s claim for a day’s pay for the time he spent filling out forms on his EOD.46 During in-processing, the applicant disputed his proposed step-level salary rate.47 He then declined the offer of employment and left the facility.48 Relying on McCarley, the Comptroller General held that he never engaged in the performance of a federal function; that is, the duties of his position, under a federal supervisor.49
Thus, Mr. Olson never fulfilled the second and third essential elements of the definition of employee. We note that this distinction between being an appointee versus being an employee has been clearly recognized by the courts, McCarley v. MSPB and NTEU v. Reagan. In the final analysis, Mr. Olson never attained the status of a Federal employee, and he may not receive payment for any preliminary time he devoted to in-processing activities that did not entail an entrance on duty and the performance of work since ‘[s]uch payment for work he did not perform . . . would be illegal.’50
The Olson decision specifically states that even some in-processing, without actual performance of work under a supervisor, will not justify payment as an employee.51 The decision further cites McCarley, in the conclusion that such payment under such circumstances would be illegal.52
The totality of the facts will ultimately be determinative of employee status. In Hintz v. Department of the Army, a probationary employee who was removed on the last day of his probationary period argued that he actually commenced work for the Army a week earlier than effected, resulting in non-probationary status.53 Hintz reasoned that his probationary period began early when, after receipt of an appointment letter and before his proposed EOD date, he attended meetings at the request of his supervisor.54 The Federal Circuit did not agree that the correspondence was an unconditional letter of appointment and that his participation at the meeting was the performance of a federal function.55 Referring to the three requirements of 5 U.S.C. § 2105, the Federal Circuit noted that Hintz received notice that he had been selected for employment and should report on 7 October 1991.56 The fact that his supervisor either encouraged or requested him to attend meetings before that date was “insufficient to establish that he was authorized to assume his duties before” that date.57 Generally, the appointment of a federal employee cannot occur in the absence of the “last act” required by the person or body vested with appointment power, and that will be examined in the totality of the circumstances.58
In the hypothetical, the organization requesting the retroactive appointment characterized both Mr. Creed and Ms. Chu as participating in twice-daily accountability exercises with their supervisors during the storm event. In both situations, the extent of the exercises and what they entailed is not provided. There is no evidence that they can be characterized as performing a federal function of the organization. Comparing Mr. Creed’s participation in accountability exercises prior to his 17 September 2018 EOD to the applicant in Olson59 filling out forms when he reported, Mr. Creed did not fulfill the essential elements of the definition of employee. Prior to the EOD, 17 September 2018, Mr. Creed was told by the CPAC that the office was closed and that he should not come in. A request to participate in an accountability exercise did not mean that Mr. Creed was authorized to assume his duties before he was appointed as a federal employee.
In Ms. Chu’s situation, the CPAC contacted her on 12 September 2018 and told her not to report on 17 September 2018 due to the hurricane. Ms. Chu was contacted by her supervisor on Friday, 14 September 2018, and was informed that Ms. Chu was told not to report, although the office was scheduled to open. Ms. Chu’s supervisor also asserted that she participated in accountability exercises over the weekend. After coordination with the CPAC, on 17 September 2018, the supervisor contacted Ms. Chu and advised her to report the next day, 18 September 2018. There is no evidence that accountability exercises were anything other than verification of the status of personnel during a hurricane.
Without contravening facts, it is doubtful that these exercises rise to a level that can be characterized as a federal function. Mr. Creed and Ms. Chu were told not to report for duty, nor were they sworn in prior to 18 and 25 September 2018, respectively. In accordance with the Olson decision, they cannot receive payment as employees for any preliminary time devoted to verifying personnel safety or status activities that came prior to being sworn in.
Back pay may be awarded where applicants started working, but were erroneously never sworn in or processed.60 In Jackie R. Smarts, Defacto Employee, the Comptroller General found that the employee “filled the office, discharged [her] duties, and did so under the approval of her supervisors” in “good faith and under color of authority.”61 Based on that rationale, back pay for forty hours was allowed.62
In the hypothetical, there is no evidence the applicants performed work. This is not a matter of an inadvertent failure to process or swear someone in. Acknowledging that Mr. Creed and Ms. Chu participated in the accountability exercises, there was no characterization of the hurricane-related accountability measures as work or accomplishment of the mission of the organization. Therefore, Mr. Creed and Ms. Chu were not de facto employees.
The wording of the OPM Guide, paragraph 4-1 requires that appointments to civil service are effective from the date of acceptance and EOD, further defining EOD as completing in-processing and being sworn in. Mr. Creed and Ms. Chu were required to take the oath of office before they could be considered appointed as federal employees. Since 1975, the Comptroller General has consistently held that there is no entitlement to compensation until an appointment has been fully consummated by taking the oath of office.
Under the Back Pay Act, 5 U.S.C. § 5596, an applicant may receive a retroactive appointment and back pay if they have undergone an “unjustified or unwarranted personnel action.”63 Comptroller General decisions have considered actions “unjustified or unwarranted” when there was legal entitlement to the appointment.64 Simple administrative errors will not rise to the level requiring back pay or retroactive appointment. The mistaken communication to Ms. Chu not to report on 17 September 2018 does not warrant back pay or retroactive appointment.
In 1981, the U.S. Court of Appeals, D.C. Circuit, in NTEU v. Reagan, used the 5 U.S.C. §2105 definition of “employee” to deny retroactive appointment and back pay.65 That decision has been followed by the courts, MSPB, and Comptroller General to deny government employee status to applicants who have spent time in-processing on EOD, or for others who attended work meetings before their EOD who were not sworn in. Generally, the appointment of a federal employee cannot occur in the absence of the “last act” required by the person or body vested with appointment power, and that will be examined in the totality of the circumstances.66
Natural disasters occur with some frequency worldwide. During those events, the commencement of federal employment is a recurring issue. Be aware that the failure to take the oath of office or report for in-processing will be held to delay the commencement of federal employment. Assertions of performance of duties prior to EOD should be examined carefully. Without specific performance of duties before applicants come on board, they should not be considered de facto employees. TAL
Ms. Esparraguera is a strategic initiatives officer at the Civilian Human Resources Agency, Aberdeen Proving Ground, Maryland.
Notes
1. Marbury v. Madison, 5 U.S. 137, 157 (1803).
2. Id. at 177-79.
3. United States Office of Personnel Management, The Guide to Processing Personnel Actions (Mar. 2017), https://www.opm.gov/policy-data-oversight/data-analysis-documentation/personnel-documentation/#url=Processing-Personnel-Actions [hereinafter OPM Guide].
4. Administrator, Federal Aviation Administration, 45 Comp. Gen. 660 (Apr. 28, 1966).
5. Id. (emphasis added).
6. OPM Guide, supra note 3, para. 4-1.
7. Id. para. 4-3.a.
8. Id. para 4-3.c.
9. Id. para 4-2.
10. Id. para 4-3.c.
11. Civilian Employee-Unjustified Personnel Action-Back Pay-Entitlement, 72 Comp. Gen. 20526 (21 Apr. 1972).
12. Id.
13. Id.
14. Id.
15. Id.
16. The Back Pay Act, 5 U.S.C. § 5596 (2018).
17. Civilian Employee-Unjustified Personnel Action-Back Pay-Entitlement, B-175373, 72 Comp. Gen. 20526 (21 Apr. 1972).
18. Leonard Ross, Claim for Backpay, B-183440 (Aug. 12, 1975), https://www.gao.gov/assets/400/396022.pdf.
19. Id.
20. Id.
21. Id.
22. Civilian Employee-Unjustified Personnel Action-Back Pay-Entitlement, 72 Comp. Gen. 20526 (21 Apr. 1972).
23. Leonard Ross, Claim for Backpay, B-183440 (Aug. 12, 1975), https://www.gao.gov/assets/400/396022.pdf.
24. Raymond J. DeLucia, B-191378 (Jan. 8, 1979) (unpublished).
25. Id.
26. Id.
27. Id.
28. 5 U.S.C. § 2105(a) (2018).
29. National Treasury Employees Union v. Reagan, 663 F. 2d 239, 246 (May 20, 1981).
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. 5 U.S.C. §2105(a) (2018).
37. Deida v. Department of Navy, 110. M.S.P.R. 408, ¶ 13 (2009).
38. Testart v. Department of Navy, 42 M.S.P.R. 21 (2009).
39. Robert McCarley v. MSPB, 757 F.2d 278, 280 (Fed. Cir. 1985).
40. Id.
41. Rodgers D. O’Neill: Entitlement to Military Leave Prior to Appointment, B-205972 (May 25, 1982) (unpublished).
42. Id.
43. Id.
44. Id.
45. Harry Olson, B-224600 (Oct. 8, 1986) (unpublished).
46. Id.
47. Id.
48. Id.
49. Robert McCarley v. MSPB, 757 F.2d at 280.
50. Harry Olson, B-224600 (Oct. 8, 1986) (unpublished).
51. Id.
52. Id.
53. Hintz v. Dept. of Army, 21 F.3d 407, 409-10 (Fed. Cir. 1994).
54. Id.
55. Id.
56. Id.
57. Id. See also Haverstock v. Dept. of Army, U.S. Merit Systems Protection Board, DA-0752-10-0679-I-1 (nonprecedential 3/23/2012).
58. Hoever v. Department of the Navy, 115 M.S.P.R. 487, 8 (2011); McGovern v. Equal Employment Opportunity Commission, 28 M.S.P.R. 689, 692 (1985); Scott v. Department of the Navy, 8 M.S.P.R. 282, 287 (1981); Bilodeau v. American Battle Monuments Comm’n, 39 M.S.P.R. 243, 249-51 (1988). Cf. Jackie R. Smarts, DeFacto Employee, B-188574, Comp. Gen. (unpublished) (29 Dec. 1977).
59. Harry Olson, B-224600.
60. Jackie R. Smarts, DeFacto Employee, B-188574, Comp. Gen. (unpublished) (Dec. 29, 1977).
61. Id.
62. Id.
63. Back Pay Act, 5 U.S.C. § 5596
64. Id.
65. National Treasury Employees Union v. Reagan, 663 F. 2d 239, 245 (May 20, 1981).
66. Id.