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:

• to alleviate hardship to individuals resulting from agencies' errors in effecting personnel actions, e.g., erroneous appointments; and,
• to permit agencies to take actions in unusual situations which cannot be accommodated within the letter of the regulation.

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

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

• Agency made an error, but has subsequently given the employee a proper appointment. In this case, the agency will want service credit for the period of de facto employment (the time from the initial error up to the day before the proper appointment).

• Agency made an error and the error cannot be corrected. Employee is still on an illegal appointment. A variation is needed to: 1) retain the employee, and 2) grant service credit for the period of de facto employment.

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

• Try to give the employee a legal appointment.

• Find out if the employee could have been properly appointed at the time the error was madei.e. reviewing previously advertised positions for which qualified and determined to be within reach for selection, noncompetitive appointment authorities, and contact the local OPM Service Center and ask them to reconstruct.)

• If the employee could not have been properly appointed when the error was made (not within reach or Service Center cannot reconstruct), find out if the employee could have been within reach competitively at any time during the period of de facto employment.

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.

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.

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:

• The Office of Personnel Management (OPM) has approved a precedent-setting variation under civil service rule V to 5 CFR 330.706(b) which requires that agencies report all vacancies to OPM when accepting applications from outside the agency (including applications for temporary positions lasting 90 or more days).

• The Immigration and Naturalization Service (INS) is experiencing unprecedented growth and needs to rehire recent INS retirees who can assist the INS in an effort to hire and train 5,000 new employees. Temporarily rehiring recently retired INS employees will provide INS with a cadre of experienced and well trained workers who can assist in this massive hiring and retraining effort. The support positions needed are unique, and require knowledge of immigration and nationality laws, and in most instances, fluency in Spanish.

• Former Federal employees who would otherwise apply for and be considered for these positions under 5 CFR Part 330, interim Interagency Career Transition Assistance Plan (ICTAP) regulations, would not meet the highly specialized qualification requirements. INS has no surplus or displaced employees who qualify for these positions. Requiring the INS to advertise these one of a kind positions where there is no expectation that there are displaced employees with the requisite skills would add unnecessary delay to accomplishing its goals mandated by Congress.

• Variation was granted to avoid undue hardship to the agency while undergoing a massive effort to hire and train 5,000 new employees. The variation did not circumvent the intent of the regulation because Federal displaced workers who might otherwise apply for these positions during the notice period would not be considered well qualified, and thus would not be entitled to selection priority.

Variations from the June 5, 1996 notice:

• The Office of Personnel Management (OPM) has approved a precedent-setting variation under civil service rule V to 5 CFR 330.706(b) which requires that agencies report all vacancies to OPM when accepting applications from outside the agency (including applications for temporary positions lasting 90 or more days).

• The National Aeronautics and Space Administration (NASA) is pursuing trial and phased retirement programs, to support downsizing. These agency programs encourage employees eligible for retirement, but not sure they are ready, to try it. Under these programs NASA and the retirees sign an agreement which enables retirees to return to work as reemployed annuitants immediately, on a part-time schedule, or after a year on either a full-time or part-time schedule. Under these programs NASA agrees to make every reasonable effort to reemploy the retiree.

• Former Federal employees who would otherwise apply for and be considered for these positions under 5 CFR Part 330, interim Interagency Career Transition Assistance Plan (ICTAP) regulations, are not participants in this NASA program and therefore, do not qualify for these positions. Requiring NASA to advertise these positions, which do not exist except for retirees under these programs, would add unnecessary delay in rehiring program participants.

• Variation was granted to avoid announcing positions established under these programs. This avoids falsely raising expectations of employment causing undue hardship to displaced employees. In addition, it assists NASA in honoring its current commitments without the unnecessary hardship of processing applications from displaced and surplus employees. Further, this will enable NASA to continue using these programs in downsizing thereby minimizing the number of surplus and displaced employees, while OPM prepares an exception for the final regulations.

Variations from the August 9, 1996 notice:

• The Office of Personnel Management (OPM) has approved a precedent-setting variation under civil rule V to 5 CFR 330.604(b) and (f), and to 5 CFR 330.703(b), which set forth the categories of employees eligible for placement assistance under the interim CareerTtransition regulations. The variation permits excepted service employees eligible for noncompetitive appointment under the Criminal Justice Information Services Placement Assistance Act to be considered "surplus" or "displaced" for purposes of internal selection priority, and "displaced" for purposes of selection priority over other Federal employees under the Interagency Career Transition Assistance Plan (ICTAP).

• Public Law 103-317, section 115, extends noncompetitive appointment eligibility to competitive service positions for employees of the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI), Department of Justice, who do not relocate with their positions from Washington, DC, to Clarksburg, West Virginia. These individuals serve in positions excepted from the competitive service.

• Employees of the Criminal Justice Information Services Division of the FBI who decline a reassignment from Washington, DC to West Virginia will be separated from their positions. Under the current interim career transition regulations, these excepted service employees are not eligible for the special selection priority provisions, since they apply only to employees in the competitive service. Since under Public Law 103-317, section 115, these employees were given noncompetitive appointment eligibility to other Federal positions, it is clear that it was Congress' intent to help ease the transition of these employees to other Federal employment. These employees are highly specialized, and Federal hiring is at an all time low; thus, granting a variation to the regulations to receive special selection priority is within the spirit of the regulations.

• Variation was granted to avoid undue hardship to the employees of the Criminal Justice Information Services Division of the FBI because of the difficulty that these employees may face in finding other Federal employment at a time during which the Federal Government is undergoing downsizing and restructuring. In addition, the specialized skills that these employees have are not easily transferable to other jobs.

Variation was granted to 5 CFR 330.706(b):

• On December 31, 1996, variation was granted to permit without advertising vacancies, the Department of Health and Human Services, Health Care and Finance Administration (HCFA) to rehire former employees who have retired from HCFA and seek reemployment back to the agency, within 1 year of their separation date. Through this trial retirement program, the agency has an obligation to rehire an annuitant who wants to return within the year. The requirement to advertise the vacancy and select a displaced employee from another agency would negate the programs purpose and work against the agency's efforts to downsize and streamline. A variation is required to 5 CFR 303.706(b) to accomplish this, because the interim ICTAP regulation require agencies to report all competitive service positions when accepting applications from individuals outside the agency. A retired employee is outside the agency.

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.

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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:

• On April 14, 1995, variation was granted to permit the retention of an employee of the Department of Agriculture, Natural Resources Conservation Service, Albany, New York. The employee, a Civil Engineer, GS-810-5, had been given an erroneous direct-hire appointment on May 29, 1994, based on an expired direct-hire appointing authority. This appointment could not be corrected through the normal competitive process.

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:

• On June 8, 1995, variation was granted to permit the retention of an employee of the Department of the Navy, Naval Undersea Warfare Center, Keyport, Washington. The employee was a non-citizen when initially appointed to a temporary position on February 6, 1979, as a Laborer, WG-3502-2. The agency subsequently effected a career-conditional appointment on March 25, 1981, though the employee did not become a U.S. citizen until October 20, 1994.

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:

• On August 4, 1995, variation was granted to permit the retention of a GS-7 Secretary (Typing) with the Department of State. On June 14, 1992, the agency erroneously reinstated the employee whose prior service had not conferred competitive status. After the error was discovered, it was determined that the employee would have been within reach competitively for the position at the time the error occurred. Service credit for career tenure and time in grade was granted from the date of initial appointment.

• One variation was granted as an exception to 5 CFR 330.101 to allow service credit for career tenure and time-in-grade purpose for an employee whose appointment did not meet the requirements of the authority used.

• On August 23, 1995, variation was granted to confer service credit from September 19, 1993, to February 18, 1995, for an employee of the Department of Justice, Bureau of Prisons, Miami, Florida. That individual, who held an excepted appointment which did not confer transferability into the competitive service, was erroneously transferred to a career conditional appointment as an Accounting Technician, GS-525-6. On February 19, 1995, the agency was able to appoint the employee competitively to that position.

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:

• On December 6, 1995, variation was granted to confer service credit from July 25, 1993, to December 11, 1993, for a Teacher, GS-1710-7, with the Department of Justice, Federal Correctional Institution, Mariana, Florida. On July 25, 1993, the agency erroneously appointed the employee using the direct-hire authority under the Administrative Careers with America (ACWA) program. The position of teacher was not covered by the ACWA direct-hire authority. On December 12, 1993, the agency was able to appoint the employee competitively to that position.

• On December 6, 1995, variation was granted to confer service credit from October 6, 1991, to April 29, 1995, for an Administrative Clerk (Typing), GS-303-6, with the Department of the Justice, U.S. Marshals Service, Alexandria, Virginia. On October 6, 1991, the agency erroneously reinstated the individual after her reinstatement eligibility had expired. On April 30, 1995, the agency was able to appoint the employee competitively to that position.

• On December 27, 1995, variation was granted to confer service credit from April 3, 1995, to September 28, 1995, for an Engineering Equipment Operator, WG-5716-10, with the Department of the Air Force, Homestead Air Reserve Base, Florida. On April 3, 1995, the agency erroneously appointed the employee using the Nonappropriated Fund Interchange Agreement as its authority, but the employee no longer met the criteria of the interchange agreement. On September 29, 1995, the agency was able to properly appoint the employee competitively to the position.

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:

• On February 5, 1996, variation was granted to permit the retention of an employee of the National Aeronautics and Space Administration, Headquarters, Washington, DC. The employee, a non-citizen, was erroneously appointed as an Office Automation Clerk, GS-326-3, under a direct-hire authority, on December 13, 1992. The employee became a citizen on March 10, 1995. This appointment could not be corrected through the normal competitive process.

• On March 21, 1996, variation was granted to permit the retention of an employee of the Defense Commissary Agency, a part-time Sales Store Checker, GS-2091-03, at Langley Air Force Base, VA. The employee was appointed under the provisions of Executive Order 12721, which permits noncompetitive appointment of military spouses who have at least 52 weeks of overseas service. This employee did not meet that requirement, and the agency was not able to regularize the appointment.

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:

• On March 25, 1996, variation was granted to permit the retention and full service credit for an employee of the Department of the Army, U.S. Army Corps of Engineers, Sacramento, CA. This employee was erroneously reinstated in 1981, to a career conditional appointment in a different agency. The Army accepted the employee's transfer from that agency and subsequently discovered the error, 15 years later. The Army has not been able to regularize the employee's appointment.

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:

• On May 23, 1996, variation was granted to allow service credit for an employee of the Department of Justice, Bureau of Prisons, in Chicago, Illinois. On July 1, 1990, the agency erroneously appointed the individual as a Computer Specialist, GS-334-11, under a direct hire authority that was not applicable to the position. On September 17, 1996, the agency was able to properly appoint the employee to that position.

• On May 30, 1996, variation was granted to confer service credit from May 16, 1982 to March 16, 1996, for an employee who was erroneously reinstated to a career appointment as an Electronics Mechanic Foreman, WS-2604-8, with the Department of Justice, Bureau of Prisons, Milan, Michigan. The individual's prior service was in the excepted service which did not confer reinstatement. On March 17, 1996, the employee was properly appointed through competitive procedures.

• On June 21, 1996, variation was granted to confer service credit for two employees of the Defense Logistics Agency in Dallas, Texas, who were appointed by incorrectly using a direct hire authority that did not apply to the position. One individual was appointed on September 9, 1991, as an Electronics Engineer, GS-861-12, and the other on September 16, 1991, as an Aerospace Engineer, GS-855-12. Both employees were given proper career-conditional appointments on March 28, 1993. For the period of de facto employment both employees would have been within reach for their appointment if the proper direct hire authority would have been used.

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:

• On April 22, 1996, variation was granted to permit an employee of the Department of Education to be retained as an Office Automation Clerk, GS-326-4, in San Francisco, California. The individual was improperly reinstated under a temporary appointment on January 9, 1995, based on career tenure erroneously granted by the employee's former agency, and was subsequently converted to a career appointment on January 22, 1995. The agency was unable to regularize the appointment.

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:

• On April 26, 1996, variation was granted to permit the retention and full service credit for an employee of the Department of the Army who was erroneously reinstated on May 5, 1986, to a career appointment as a Clerk Typist, GS-322-3, at Fort Leonard Wood, Missouri. The individual's reinstatement was based on career tenure erroneously granted by another agency in 1982.

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:

• On April 4, 1997, variation was granted to allow service credit for an employee with the Department of Justice, U.S. Attorney's Office, in California. On July 9, 1995, the agency appointed the individual to a career appointment as a Management Analyst, GS-343-12, incorrectly using Public Law 101-474 which gives certain employees of the Administrative Office of the U.S. Courts noncompetitive appointment eligibility to competitive service positions. After discovering the employee was not eligible for noncompetitive appointment under this law, the agency was able to properly appoint the employee to that position on September 29, 1996.

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:

• On April 4, 1997, variation was granted to allow service credit for an employee with the Department of Justice, U.S. Attorney's Office, in California. On July 9, 1995, the agency appointed the individual to a career appointment as a Management Analyst, GS-343-12, incorrectly using Public Law 101-474 which gives certain employees of the Administrative Office of the U.S. Courts noncompetitive appointment eligibility to competitive service positions. After discovering the employee was not eligible for noncompetitive appointment under this law, the agency was able to properly appoint the employee to that position on September 29, 1996.

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:

• On July 30, 1996, variation was granted to allow service credit for an employee of the Department of the Army, U.S. Army Medical Department Activity, Fort Huachuca, Arizona. On June 23, 1986, the agency erroneously appointed the individual as a Computer Operator, GS-332-7, based on eligibility under Executive Order (EO) 12362. The appointment was invalid because the employee was not a family member of a uniformed service member as required under EO 12362. On May 12, 1996, the agency was able to properly appoint the employee to a Computer Assistant, GS-335-05.

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:

• On July 12, 1996, variation was granted to permit the retention of an employee of the Department of the Army, I Corps and Fort Lewis, Fort Lewis, Washington. The employee was a non-citizen when initially appointed to a career-conditional position of EAM Operator, GS-359-1, on July 20, 1970. Although the employee became a U.S. citizen on March 13, 1996, the agency was unable to regularize the original appointment.

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:

• On November 7, 1996, variation was granted to allow retention and full service credit for an employee of the Department of the Treasury, Office of Thrift Supervision (OTS). On October 1, 1995, the agency erroneously appointed the individual as a Chief, Dissemination, TG-301-20 to a career-conditional appointment. The employee had transferred from the Department of Justice on a term appointment but a term appointment does not confer competitive status. After the error was discovered, it was determined that the employee would have been within reach competitively for the position at the time the error occurred. Full service credit was granted from the date of the initial appointment.

• On December 11, 1996, variation was granted to allow full service credit for two employees of Defense Logistics Agency. The agency erroneously effected veterans readjustment appointments (VRA) for both employees and neither met the statutory provision for VRA eligibility. After discovering its error, the agency was able on June 23, 1996, and September 1, 1996, to properly appoint each of the two employees to career-conditional appointments.

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:

• On January 23, 1997, variation was granted to allow service credit for an employee with the Department of Justice, U.S. Attorney's Office, in New York. On August 5, 1990, the agency appointed the individual to a career-conditional appointment as a Legal Technician (Typing), GS-986-7, incorrectly using a direct-hire authority that did not apply to the position. After discovering the error, the agency was able to properly appoint the employee to that position on April 28, 1996.

• On March 19, 1997, variation was granted to confer service credit for 9 employees of the Department of the Navy, Naval Research Laboratory, who were appointed by incorrectly using a direct-hire authority that had expired. The individuals were hired under career-conditional appointments in various positions during the period May 1996 through July 1996. All of them were properly appointed to their positions in September 1996.

• On March 24, 1997, variation was granted to allow service credit for an employee of the Department of Transportation, Federal Highway Administration, Lakewood, Colorado, who was erroneously reinstated to a career-conditional appointment on February 26, 1997, as an Administrative Program Assistant, GS-303-6. The individual's prior service was in the excepted service which did not confer reinstatement. On July 7, 1996, the agency was able to properly appoint the employee to that position.

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:

• On February 5, 1997, variation was granted to permit an employee of the Department of Energy to be retained with full service credit as a Program Support Specialist, GS-301-11, in Washington, DC. For this employee, the initial administrative error began over 17 years ago (1979), when another agency incorrectly reinstated the individual to a permanent position. After a break in service, the employee was again incorrectly reinstated in 1993 to another agency which failed to recognize the 1979 error. On October 30, 1994, the employee, who had never established competitive status, transferred to the current agency, where the previous errors were discovered.

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.

• On April 4, 1997, variation was granted to allow service credit for an employee with the Department of Justice, U.S. Attorney's Office, in California. On July 9, 1995, the agency appointed the individual to a career appointment as a Management Analyst, GS-343-12, incorrectly using Public Law 101-474 which gives certain employees of the Administrative Office of the U.S. Courts noncompetitive appointment eligibility to competitive service positions. After discovering the employee was not eligible for noncompetitive appointment under this law, the agency was able to properly appoint the employee to that position on September 29, 1996.
• On July 28, 1997, variation was granted to allow service credit for an employee with the Department of Justice, Bureau of Prisons, Federal Correctional Institution, in Pekin, Illinois. On June 11, 1995, the agency erroneously reinstated the employee to a Correctional Officer position, GS-007-6. The individual's prior service was in the excepted service which did not confer reinstatement. On January 19, 1997, the agency was able to regularize the appointment using its Delegated Examining Authority.
• On August 20, 1997, variation was granted to allow service credit for an employee with the Department of Justice, U.S. Attorney's Office, Central District of California. On April 16, 1995, the agency erroneously appointed the individual to a career appointment as a Legal Secretary, GS-986-6, incorrectly using Public Law 101-474 which gives certain employees of the Administrative Office of the U.S. Courts noncompetitive appointment eligibility to competitive service positions. However, as a former U.S. District Court employee, the individual was not eligible for appointment. The agency was able to properly appoint the employee to the position on February 16, 1997.
• On September 12, 1997, variation was granted to allow service credit for an employee in a Recreation Therapist position, GS-0638-5, with the Armed Forces Retirement Home, United States Naval Home, in Gulfport, Mississippi. On December 10, 1995, the agency erroneously appointed the employee to the position using the Outstanding Scholar provision under the Luevano Consent Decree, but the Recreation Therapist series is not a valid series as defined under the Luevano decree. The agency was able to competitively appoint the employee on August 13, 1997.

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.

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