Overview

This section assists Federal agencies with correcting errors made during the competitive hiring process. Variations are used to alleviate errors made in the competitive hiring process when no other remedy exist within the regulation.

All Federal agencies in the Executive Branch are required to make every effort to correct of any erroneous appointments.

Nature & Purpose of a Variation

The Office of Personnel Management (OPM) is authorized by rule V [5 CFR 5.1 ] to permit variation (i.e., an exception) from the strict letter of the regulations whenever precise compliance with them would impose practical difficulties and unnecessary hardship and when no other remedy exists within the regulations. A variation may be granted if it is within the spirit of the regulations and if it adequately meets the objectives and accomplishes the purpose of the regulation as far as the Government and the competitive service are concerned. All variation requests must be submitted by the agency's headquarters level.

There are two categories of variations:

Under rule V, a non-precedent setting variation applies "whenever like conditions exist," regardless of how much time has passed. Most requests for variations are non-precedent setting and are approved by the Associate Director for Employment Services.

When evaluating a variation that will set a precedent, consideration must be given to why an exception would be more appropriate than a change to the regulation. If the situation is likely to happen frequently and is within the spirit of the rules, regulatory change may be preferable, although a variation may still be needed if an agency needs to act in an individual case before the new regulation takes effect. However, if the situation justifying the variation is not likely to happen again, variation may be the preferable course of action. Precedent-setting variations must be approved by the Director.

While 5 CFR 5.1 authorizes variations that affect requirements established by personnel regulations, OPM has no legal authority to modify requirements established by law, Executive Order, or court decision; e.g., citizenship, Veterans Recruitment Appointments (VRA), and overseas Executive Orders. An action that violated such requirements (e.g., appointment of a noncitizen in the competitive service and the employee did not obtain citizenship or a VRA appointment of someone who did not served on active duty in the Armed Forces during a war declared by Congress, or in a campaign or expedition for which a campaign badge has been authorized) cannot be regularized by variation. If proper appointment authority cannot be established in these cases, termination is the only recourse. OPM also cannot vary regulations regarding employee compensation or leave

Correcting Erroneous Appointment

If an employee is on an illegal appointment (i.e, reinstated improperly, appointed noncompetitively (Veterans Recruitment Appointment) when the employee wasn't eligible for noncompetive appointment, the agency should make every effort to put the employee on a legal appointment. A variation request must be the only way to avoid the hardship. Remember, it is the remedy of last resort! Agencies must have made extensive efforts to regularize the erroneous appointment before the OPM will consider granting a variation. A variation is granted to avoid unnecessary hardship to the employee, i.e, loss of employment, pay, grade or significant service credit.

There are Two Types of Variations Involving Erroneous Appointments

Before asking for a variation, the agency must go through the following steps

The outcome of the above 3 steps determines whether a variation request will be granted.

If on Proper Appointment Now

Once on a proper appointment, the agency may want to get full service credit for the de facto employment. The agency must show proof that the erroneous appointment was corrected by proper competitive procedures. To do this, the agency must find out if the employee could or would have been within reach for the same appointment at an earlier date. The agency should contact the OPM Service Center, which would try to reconstruct the register or announce through case examining. The agency can do this on its own if it has a delegated examining unit (DEU) or DEU authority. If the employee is on a proper appointment, he/she gets credit for the de facto service employment for all purposes except career tenure and time-in-grade.

If the employee is within reach earlier than the proper appointment but may not have been within reach from the date of the initial error, a variation is granted to give full service credit for all purposes including career tenure and time-in-grade from the date the employee would have been within reach. If the employee may have made the certificate at the time of initial error (or some time later, but would not have been within reach, ( i.e, blocked by a veteran), variation for service credit for career tenure and time-in-grade wouldn't be appropriate because the agency would not have been able to appoint the employee at that time anyway.

If NOT on Proper Appointment Now

If the agency or the OPM Service Center is unable to reconstruct the register, (i.e, threw out the records or so much time has elapsed that reconstruction is not possible or practicable or real vacancy does not exist so office doesn't want to announce as "vacancy"), agency may be granted a variation to retain the employee on the basis that extensive efforts have been made to regularize. However, the employee would not be given service credit for time-in-grade and career tenure since the individual did not hold a "proper" competitive appointment. Therefore, we would allow retention to avoid hardship to the employee that loss of employment would cause but, to protect competitive principles, service credit for career tenure and time-in-grade can begin only from the date of the variation.

If it can be determined that the employee would have been reachable at some point in the past, we can grant a variation to retain the employee and grant full service credit including career tenure and time in grade from the date the person would have been within reach providing there is proof that the employee would have been reachable, i.e. old vacancy announcement and certificate of eligibles.

Required Documentation

  1. An explanation of the circumstances of the erroneous appointment i.e. when it occurred, timeframe, how was the erroneous appointment discovered, steps to reconstruction, inability to regularize appointment or how the erroneous appointment was regularized, what applicants lost consideration;
  2. Standard Form (SF) 50’s for erroneous and regularized action;
  3. Certificates of Eligibles for erroneous and regularized appointments; and
  4. Provide all information concerning applicants that were affected by the erroneous appointment and how the lost consideration procedures were handled.

Variation in Unusual Situations

Variations responding to unusual situations raise different policy issues than variations to correct erroneous appointments. These variations permit something to happen rather than correcting something that has already happened. Their denial would not cause personnel hardship such as separation or pay loss for any individual. Consequently, the OPM has approved these variations to relieve practical difficulty for agencies only when all other conditions specified in Rule V were clearly met.

Other requests for variation may arise from situations that were not anticipated when the regulations were written. Variation would be appropriate in these cases if the proposed action is within OPM's authority (i.e., if it does not violate a legal requirement), if it would accomplish the intent of the regulation better than the action normally required, and if it does not compromise the integrity of the competitive service.

Notices of Career Transition Assistance

The following variations are listed in chronological order. They are excerpted from the quarterly notices which are listed under Quarterly Notices of Variations.

Variations from the June 4, 1996 notice:

Variations from the June 5, 1996 notice:

Variations from the August 9, 1996 notice:

Variation was granted to 5 CFR 330.706(b):

Section 5.1 of civil service rule V requires that like variations be granted in like circumstances. Therefore, if an agency believes it has a case which parallels one of those described in this notice, a variation may be requested. Agencies are reminded, however, that variation is appropriate only when no other authority exists to remedy the hardship or practical difficulty. All requests for variation must be sent through the headquarters of the agency or department involved and must be transmitted to the Office of Personnel Management for final action. Agencies do not have authority to approve variations.

Notices of Corrected Actions

The following variations are listed in chronological order. They are excerpted from the quarterly notices which are listed under Quarterly Notices of Variations.

One variation was granted to permit retention of an employee whose appointment did not meet the requirements of the authority used. Such a variation involved an exception to the requirement of 5 CFR 330.101, that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

Variation was granted to alleviate the unnecessary hardship of separating the employee who was not at fault in the erroneous personnel action. To protect the integrity of the competitive service, service credit for career tenure and time-in-grade was granted only from the effective date of the variation.

One variation was granted as an exception to 5 CFR 330.101 for an employee whose appointment did not meet the requirements of the authority used:

Variation was the only way to avoid the extreme hardship of employment separation. Since the Office of Personnel Management (OPM) has no legal authority to modify the citzenship requirements for the competitive service set by Executive Order, credit for career tenure and time-in-grade could only be granted from the date of citizenship.

One variation was granted to allow retention and full service credit for an employee whose appointment did not meet the requirements of the authority used. Such variation involved an exception to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

Three variations were granted as an exception to 5 CFR 330.101 to allow service credit for career tenure and time-in-grade purposes for an employee whose appointment did not meet the requirements of the authority used:

In each of these cases, variation was granted to avoid unnecessary hardship to the employee who, though now properly appointed, would otherwise face loss of important service credit due to administrative error, even though extensive efforts had been made to regularize the improper appointments covering the time of de facto employment. The variation permitted crediting the employee's de facto service from the date of erroneous appointment to the date of proper competitive appointment for full service credit, including credit for career tenure and time-in-grade purposes.

Two variations were granted, as an exception to 5 CFR 330.101, to permit retention of two employees whose appointments did not meet the requirements of the authority used and whose appointments could not be regularized by their agencies:

In both cases, variation was granted to alleviate the unnecessary hardship of separating the employee who was not at fault in the erroneous personnel action. However to protect the integrity of the competitive service, service credit for career tenure and time-in-grade was granted only from the effective date of the variation.

One variation was granted as an exception to 5 CFR 330.101:

Variation was the only way to avoid the extreme hardship of separation. Following established precedent that treats old administrative errors, the variation permitted retention of the employee and also allowed full service credit from the date of appointment. Since so much time has passed from the date of appointment, it was not possible to judge if the individual could have been reached for competitive appointment.

To correct administrative errors, three variations were granted to allow credit for career tenure and time-in-grade purposes for employees whose appointments did not meet the requirements of the authorities used. These variations involve exceptions to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

In each of these cases, variation was granted to avoid unnecessary hardship to the employees who, though now properly appointed, would otherwise face loss of important service credit due to administrative error. The variations permitted crediting the period of de facto service, from the date of erroneous appointment to the date of proper appointment, for full service credit.

One variation was granted as an exception to 5 CFR 330.101 to permit retention of an employee whose appointment did not meet the requirements of the authority used:

Retention was granted to avoid hardship to the employee who would face loss of employment. However, to protect the integrity of the competitive service, credit for career tenure and time in grade was granted only from the effective date of the variation.

One variation was granted as an exception to 5 CFR 330.101 for an employee whose appointment did not meet the requirements of the authority used:

Variation was the only way to avoid the extreme hardship of separation. Following established precedent that treats old administrative errors, the variation permitted retention of the employee and also allowed full service credit from the date of appointment, including career tenure and time in grade. Since so much time has passed since the date of appointment, it was not possible to judge if the individual could have been reached for competitive appointment.

One variation was granted to allow credit for career tenure and time-in-grade purposes for an employee whose appointment did not meet the requirements of the authority used. The variation involves an exception to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

It could not be determined if the appointment could have been regularized at an earlier date. The variation was granted to avoid unnecessary hardship to the employee who, though now properly appointed, would otherwise face loss of important service credit due to administrative error, even though extensive efforts were made to regularize the improper appointment covering the period of de facto service. The variation permitted crediting the period of de facto service, from the date of erroneous appointment to the date of proper appointment, for full service credit.

One variation was granted to allow credit for career tenure and time-in-grade purposes for an employee whose appointment did not meet the requirements of the authority used. The variation involves an exception to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

It could not be determined if the appointment could have been regularized at an earlier date. The variation was granted to avoid unnecessary hardship to the employee who, though now properly appointed, would otherwise face loss of important service credit due to administrative error, even though extensive efforts were made to regularize the improper appointment covering the period of de facto service. The variation permitted crediting the period of de facto service, from the date of erroneous appointment to the date of proper appointment, for full service credit.

To correct an administrative error, a variation was granted to allow credit for career tenure and time-in- grade purposes for an employee whose appointment did not meet the requirements of the authority used. This variation involves an exception to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

Although variations to statutory requirements cannot be granted, OPM has approved variations to permit improperly appointed employees to be retained and allowed service credit from the date of erroneous appointment to the date of proper appointment since so much time had passed that it was not possible to judge as to whether the individual could have been reached for competitive appointment.

One variation was granted as an exception to 5 CFR 330.101 to permit retention of an employee whose appointment did not meet the requirements of the authority used:

Variation was the only way to avoid the extreme hardship of employment separation. Since OPM has no legal authority to modify the citizenship requirements for the competitive service set by Executive order, credit for career tenure and time-in-grade could only be granted from the date of citizenship.

Variations were granted to 5 CFR 330.101:

Three variations were granted to allow credit for career tenure and time-in-grade purposes for employees whose appointment did not meet the requirements of the authority used. The variations involve an exception to the requirements of 5 CFR 330.101 that positions in the competitive service be filled by one of the methods authorized in civil service law and regulations:

In each of these cases, it could not be determined if the appointment could have been regularized at an earlier date. The variation was granted to avoid unnecessary hardship to the employee who, though now properly appointed, would otherwise face loss of important service credit due to administrative error, even though extensive efforts were made to regularize the improper appointments covering the period of de facto service. The variation permitted crediting the period of de facto service, from the date of erroneous appointment to the date of proper appointment, for full service credit.

One variation was granted as an exception to 5 CFR 330.101 to permit retention of an employee whose appointment did not meet the requirement of the authority used:

Variation was the only way to avoid the extreme hardship of separation. Following established precedent that treats old administrative errors, the variation permitted retention of the employee and also allowed full service credit, including career tenure and time-in-grade. Since so much has passed since the initial error, it was not possible to judge if the individual could have been reached for competitive appointment.

Section 5.1 of civil service rule V requires that like variations be granted in like circumstances. Therefore, if an agency believes it has a case which parallels one of those described in this notice, a variation may be requested. Agencies are reminded, however, that variation is appropriate only when no other authority exists to remedy the hardship or practical difficulty. All requests for variation must be sent through the headquarters of the agency or department involved and must be transmitted to the Office of Personnel Management for final action. Agencies do not have authority to approve variations.