The very general rule among many Federal agencies is that a Federal employee who is terminated during a probationary period has no MSPB appeal right, unless the employee alleges the removal was motivated by discrimination, partisan political reasons, or the employee’s marital status.

That landscape is changing very quickly. A series of Federal Circuit and MSPB decisions dating back to 1989 has started to broaden the protection available to probationary Federal Employees.

While other cases laid the groundwork for the change, McCormick is the lead case. [McCormick v. Department of the Air Force, 307 F.3d 1339, 1342-43 (Fed. Cir. 2002), pet. for reh’g en banc denied, 329 F.3d 1354 (Fed. Cir. 2003).]

In McCormick, the Federal Circuit found that even though the employee was serving a probationary period when she was removed from Federal service, she had an MSPB appeal right since she had completed more than 1 year of “current continuous service” under other than a temporary appointment limited to 1 year or less.

If you aren’t clear on what that means, you’re not alone. The MSPB stated, in a recently published report, “These decisions have complicated the task of determining whether an individual serving a probationary or trial period has pre-termination procedural and post-termination appeal rights.”

One thing is clear, however: the Board will be looking a little closer at whether or not a particular probationary employee has an appeal right, and if so, whether that employee was afforded the proper procedural due process. In their report, the Board stated: “Agencies must now proceed with caution when terminating probationary employees because the cost of violating a probationer’s pre-termination procedural rights can be high.”

If you are a probationary employee, and you have been removed or think you are about to be removed, the best thing you can do is talk to a Federal Employee attorney familiar with the rules, procedures and decisions of the MSPB.