HHS OHR Guidance TAD-02-2017, Attorney Guidance - Classification, Qualifications, and Recruitment

Effective Date: 11/1/2016

Most Recently Updated: 03/08/2018

Document Change History

Version Number Release Date Summary of Changes Section/Page Changes Made By
1 11/1/2016 Release N/A Office of Human Resources Talent Acquisition Division employmentpolicy@hhs.gov
1.2 10/3/2017 Added additional References Section E; 5/6/7/10 Office of Human Resources Talent Acquisition Division employmentpolicy@hhs.gov
Added Law Clerk Trainee/Legal Intern definitions Section F; 2/3; Page 2
Updated Legal Intern requirements to reflect grade level restriction, and Pathways information – added clarification on conversion Section G (2)(b)(ii); Page 4-5
Added section I on recruitment of attorneys per OPM's feedback from HHS-wide excepted service audit Page 7-8
Added section J on Trial Periods Page 8
Added section K on Promotions, Section L on Adverse Actions, and Section M on Accountability Page 9
1.3 10/10/2017 Added section D. on bargaining unit employees after consultation with OHR Workforce Relations Division. Some attorney, law clerk, intern employees may be covered by bargaining agreements. Added reference to Uniform Guidelines. Page 2 Office of Human Resources Talent Acquisition Division employmentpolicy@hhs.gov
1.4 03/08/2018 Corrected guidance per OPM Memo to HHS, 3/5/2018. Law Clerk positions are filled in accordance with 5 CFR 302 and are not exempt from 302 appointment procedures (like attorney positions). Page 7, Section I.(3) Office of Human Resources Talent Acquisition Division employmentpolicy@hhs.gov

A. Purpose

This document provides guidance on the establishment and classification of attorney positions; attorney qualification standards; and mandatory recruitment procedures when filling Attorney and Law Clerk positions, consistent with HHS and Office of Personnel Management (OPM) policy, procedures and guidance, and applicable federal laws and regulations.

B. Background

HHS Office of General Counsel (OGC) is responsible for providing all legal advice and services to agency officials within the Department. See HHS, OS Statement of Organization, 38 Fed. Reg. 17032 (June 28, 1973, amend at 59 Fed. Reg. 50234 (Oct. 3, 1984). By serving as the sole, officially designated source of legal advice to the Department, OGC ensures that all offices (including Operating and Staff Divisions (OpDivs and StaffDivs)) receive uniform advice and that OGC and the Department of Justice are able to defend the agency's legal position.

C. Coverage

This guidance covers HHS-wide Attorney and Law Clerk trainee positions in the excepted service (Schedule A, 5 CFR 213.3102 (d) and (e)), and Legal Intern positions (Schedule D, 5 C.F.R. § 213.3402(a)).

D. Bargaining Unit Employees

The provisions of this guidance pertaining to conditions of employment of bargaining unit employees (e.g., the filling of a position within the scope of the bargaining unit, promotion and reassignments, and adverse actions) are fully negotiable in accordance with 5 USC Chapter 71. Therefore, when the provisions of this guidance differ from the requirements contained in applicable collective bargaining agreement(s), the agreement takes precedence for bargaining unit employees.

E. References

  1. 5 U.S.C. § 2301. Merit System Principles
  2. U.S.C. § 2302. Prohibited Personnel Practices
  3. 5 U.S.C. § 7511, Definition of Employee
  4. 5 C.F.R. § 213, Excepted Service 5 C.F.R. § 302, Employment in the Excepted Service
  5. 5 C.F.R. § 362, Subpart B, Pathways Programs, Internship Program
  6. HHS Instruction 511-1, Position Classification, dated February 15, 2013
  7. HHS Instruction 315-2, Probationary & Trial Periods, dated January 26, 2009
  8. OPM Vet Guide, Excepted Service Employment
  9. EEOC Uniform Guidelines on Employee Selection Procedures

F. Definitions

  1. Attorney:  This is a professional legal position involved in the practice of law.  An attorney's duties may include rendering legal advice and services with respect to questions, regulations, practices, or other legal matters falling within the purview of a federal agency; preparing and reviewing interpretive and administrative orders, rules, or regulations to give effect to the provisions of governing status or other requirements of law; negotiating or examining contracts or other legal documents required by the agency's activities; drafting, preparing formal comments, or otherwise making substantive recommendations with respect to proposed legislation; editing and preparing for publication statutes enacted by Congress and opinions or decisions of a court, commission, or board; and drafting and reviewing decisions for consideration and adoption by agency officials. Attorneys also represent the Agency in administrative litigation before various administrative adjudicatory agencies, and assisting the Department of Justice with regard to litigation in Federal court. Requests from managers for quasi-attorney positions such as Legal Analyst, Regulations Analyst, and Legislative Analyst should be reviewed carefully to ensure that a law degree or law license is not required in the vacancy announcement or stated in the position description (PD).
  2. Law Clerk Trainee:  Graduates of recognized law schools. Appointments may be made for periods not-to-exceed 14 months pending admission to the bar. No person may be given more than one law clerk appointment; however an appointment that was made for less than 14 months may be extended for not-to-exceed 14 months in total duration (5 C.F.R. § 213.3102 (e)).
  3. Legal Intern: Students at accredited law schools who are candidates for Juris Doctorate (J.D.), Bachelor of Laws (LL.B.), or Master of Law (LL.M.) degrees may be appointed as legal interns under the Pathways Programs (5 C.F.R. § 362, Subpart B), up to GS-12 grade level, for a period not to exceed 1 year.
  4. License to Practice Law:  A current, valid license with eligibility to practice law in a state, the District of Columbia, or any United States territory or commonwealth is a continuing condition of employment for Federal attorneys.
  5. Excepted Service Positions:  Civil service positions which are not in the competitive service or in the Senior Executive Services (SES) that are authorized and specifically excepted from the competitive service by statute, the President, or OPM.

G. Qualification Requirements*

  1. HHS Minimum Qualification Criteria for Attorneys
    1. Education Requirement: All Attorney and Law Clerk Trainee positions have a minimum requirement of completing a Juris Doctorate (J.D.) or Bachelor of Laws (LL.B.) from an accredited school.
    2. Bar Membership: All attorney positions require current active bar membership. Admission to the bar of any State, territory, Commonwealth of Puerto Rico, District of Columbia, or Federal Court is acceptable. Employees must maintain active bar membership while employed as an attorney with HHS. Active Bar membership is verified prior to appointment.
  2. Special Qualifications
    1. At the discretion of the General Counsel, one year of legal experience may be credited if the applicant possesses any one or combination of the following special qualifications:
      1. A second professional law degree (Master of Law/LL.M.);
      2. Membership on a law school's journal or law review;
      3. Membership in the Order of the Coif;
      4. Graduation in the top 33 percent of law school class;
      5. Graduation from a "top 20" law school, ranked at the time of graduation as determined by US News and World Report;
      6. One year of significant non-legal work experience in a field related to the position for which the applicant is being considered (e.g., working with a Federal Acquisition Regulation, or Equal Employment Opportunity regulations, or other work experience directly applicable to the work of the position for which the attorney is being hired); or
      7. A judicial clerkship following law school graduation.
    2. Law Clerk and Legal Intern Appointments
      1. Law Clerk Trainee. Appointments under this paragraph shall be confined to graduates of recognized law schools and shall be for periods not to exceed 14 months pending admission to the bar. No person shall be given more than one appointment under this paragraph. However, an appointment which was initially made for less than 14 months may be extended for a period not to exceed 14 months. Law school graduates who have not yet been admitted to the bar and who have not served in a judicial clerkship may be temporarily employed at the GS-11 level, not to exceed 14 months as law clerk trainees.  Law school graduates who have not yet been admitted to the bar and who have served one year in a judicial clerkship may be temporarily employed at the GS-12 level, not to exceed 14 months as law clerk trainees.
      2. Legal Intern. Students at accredited law schools who are candidates for J.D., LL.B., or LL.M. degrees may be appointed as legal interns up to GS-12 grade level for a period not to exceed 1 year under the Pathways Intern Program. Extensions may be approved on a case by case basis.  These appointments are made in accordance with the Pathways Career Intern Program requirements (5 C.F.R. § 362) and applicable HHS policy. Participants in the program shall be referred to as "Interns" and shall be students enrolled, or accepted for enrollment, in qualifying educational institutions and programs, either full or part-time, as defined under 5 CFR 362.202.  Legal Interns are eligible for non-competitive conversion to a permanent or temporary position in the competitive service once they have met Pathways program requirements, if it was stated in the job opportunity announcement from which they were selected. However, per 5 C.F.R. § 362.204, Legal Interns are not eligible for conversion upon completion of the program into positions in the excepted service, e.g. Attorney positions. The Pathways Executive Order and implementation regulations do not provide for conversion to an excepted service position.

* OPM does not issue qualification standards for Attorney (0905) and Law Clerk (0904) positions and delegates responsibility to agencies.

* Interns (0999) may be evaluated against either agency-developed standards or the OPM Schedule D Group Qualification Standards for Intern positons (5 CFR 362.203(c)).

HHS Attorney Qualifications Chart
GS Level J.D. or LL.B Bar Membership Legal Experience Requirements
GS-9 and GS-11 X X None
GS-11 ( law clerk trainees) X   Law school graduates who have not yet been admitted to the bar and who have not served in a judicial clerkship may be temporarily employed at the GS-11 level, not to exceed 14 months as law clerk trainees
GS-12 X X 1 year of professional legal experience post bar admission equivalent to the GS-11 level
GS-12 ( law clerk trainees) X   Law school graduates who have not yet been admitted to the bar and who have served one year in a judicial clerkship may be temporarily employed at the GS-12 level, not to exceed 14 months as law clerk trainees
GS-13 X X 2 years of professional legal experience post bar admission, with one year of experience equivalent to the GS-12 level
GS-14 X X 3 years of professional legal experience post bar admission with one year of experience equivalent to the GS-13 level
GS-15 X X 4 years of professional legal experience post bar admission with one year of experience equivalent to the GS-14 level

H. Approval Process for Newly Established Attorney Positions

  1. HHS requires concurrence from OGC for the establishment of Attorney (GS-0905) positions at any grade level, both within and outside of OGC.
  2. When requesting establishment of a new Attorney, GS-0905 position in all OpDivs/StaffDivs at any grade level:
    1. The OpDiv/StaffDiv Human Resources Office (HRO) receives a request to establish a new Attorney, GS-0905, position. The request should include a PD.
      Note: In the Food and Drug Administration, the Office of Chief Counsel reports to the OGC's Food and Drug Division and seeks approval directly from the OGC. However, all other FDA Centers/Offices outside the OGC's Food and Drug Division must obtain written approval from OGC to establish a new attorney position.
    2. The HRO conducts a preliminary review of the draft PD to ascertain if the position meets the series definition for an attorney and is properly classified to the GS-0905 series.
    3. Once the HRO approves the classification of the position, a designated OpDiv/StaffDiv official will submit the following information to the HHS Office of Human Resources (OHR), Talent Acquisition Division (TAD), Classification Program Manager at employmentpolicy@hhs.gov:
      1. Signed cover memorandum endorsing the request and requesting OGC's review and approval;
      2. A justification that describes the need for the position; and
      3. A draft PD signed by the requesting authority.
    4. HHS OHR/TAD will review and submit the information outlined in section G 2 (c) above to OGC for concurrence as required in section HHS Instruction 511-1, section 511-1-40.
    5. OGC has 30 calendar days to review the request and concur in writing or deny the request with a written explanation.
    6. OGC returns the approved or denied PD to TAD for record keeping purposes and TAD will return the PD to the OpDiv/StaffDiv requestor.
    7. All documentation, including OGC concurrence must be attached to the final PD and maintained with the HRO for future reference as long as the PD remains active.
    8. If an approved position is vacated and the PD and organization remains the same, HHS OHR/TAD and OGC do not need to review the position again. The OpDiv/StaffDiv has the authority to backfill the position without additional approval.

I. Recruitment

  1. Attorney and Law Clerk positions are Schedule A excepted service positions (5 C.F.R. § 213.3101(d) and (e).  
  2. Legal Intern positions are Schedule D Pathways positions (5 C.F.R. § 213.3402(a)). 5 C.F.R. Part 362, and applicable HHS policy, must be followed when filling these excepted service positions.
  3. Law Clerk positions are filled in accordance with the excepted service hiring procedures outlined in 5 C.F.R. Part 302, Employment in the Excepted Service, and HHS Instruction, Employment in the Excepted Service, 302-2.
  4. Attorney positions are exempt from the excepted service appointment procedures, in accordance with 5 C.F.R. § 302.101(c); however, OpDivs and StaffDivs must ensure documented hiring procedures (i.e., recruitment, assessment and selection procedures) are in place for Attorney positions and applied consistently, in accordance with the Merit System Principles, Prohibited Personnel Practices, and the requirements under 5 C.F.R. § 302.101(c):
    1. HHS must apply veteran's preference as far as administratively feasible. When filling Attorney positions, HHS considers military service a positive factor when reviewing applications. Applicant lists will annotate which applicants are veterans.
    2. HHS must provide qualified and available preference eligible applicants the reason(s) for non-selection upon request.
    3. Persons entitled to priority consideration (i.e., an individual who was furloughed or separated without misconduct from an excepted service position without time limit because of a compensable injury and whose recovery takes longer than 1 year from the date compensation began and applies for reappointment to HHS within 30 days of the date such compensation stopped) must be provided priority consideration for attorney positions, in accordance with 5 U.S.C. § 8151 and 5 C.F.R. § 302.101(c).
  5. When a non-preference eligible applicant is selected over a preference eligible applicant, the pass over procedures under 5 C.F.R. § 3318 are not required to be followed for Schedule A attorney positions (Jarrad vs. DOJ, 669 F.3d 1320 (9th Cir. 2012)).
  6. When processing personnel actions, OPM's Guide to Processing Personnel Actions, Chapter 11, Excepted Service Appointments is used, citing either the Schedule A or Schedule D authority that authorizes the appointment.
  7. Tenure is assigned following guidance in OPM's Guide to Data Standards. Generally, time-limited or temporary appointments are Tenure Code 3; individuals serving trial periods are assigned Tenure Code 2; and employees who have completed trial periods and are on permanent appointments are Tenure Code 1.
  8. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. All records created in a given year must be retained for a total of three full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, etc. or if the time limits associated with grievance processes have passed (e.g., before the anniversary date).

J. Trial Periods

  1. In accordance with HHS Instruction 315-2, attorneys who are appointed to non-temporary positions must satisfactorily complete a two-year trial period.
  2. An employee who has completed a trial period is not required to complete another trial period when the prior service is in a same or similar HHS excepted service position, unless the law, Executive Order, or regulation authorizing the excepted service appointment specifies differently.
  3. An employee who has completed a probationary period in the competitive service may be required to serve a trial period in the excepted service, subject to approval of the HRO in consultation with the hiring manager, and the provisions of the excepted appointing authority.
  4. Absences in a non-pay status in excess of 22 workdays, except for periods of military duty or compensable injury, extend the trial period by an amount equal to the time off on unpaid leave.
  5. The two-year trial period ends when the employee completes his/her scheduled tour of duty on the day before the second anniversary date of the employee's appointment.
  6. Guidance on managerial or supervisory probationary periods can be found in HHS Instruction 315-2, Probationary & Trial Periods.
  7. When an OpDiv/StaffDiv decides to terminate an employee serving a trial period because the employee's work performance or conduct during the period fails to demonstrate fitness or qualifications for continued employment, the employee will be notified in writing, provided a reason for termination (an explanation of unsatisfactory performance or conduct) and the effective date of the action. The servicing HRO Employee Relations staff must be consulted prior to initiating any termination action to ensure the action is legally supportable.

K. Promotions and Reassignments.

Attorneys must meet the qualification requirements for the position in promotions and reassignments. Excepted service employees are not subject to the time-in-grade limitations outlined in 5 C.F.R. § 300, Subpart F prior to being promoted within the excepted service.

L. Adverse Actions and Appeals

  1. Excepted service employees who meet the definition of 'employee' under 5 U.S.C. § 7511(a)(1)(B-C) have appeal rights to the Merit Systems Protection Board for adverse actions.
  2. Servicing Employee Relations staff should be consulted when dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulations, HHS policy, and applicable collective bargaining agreement(s).

M. Accountability

  1. The servicing HROs will conduct an annual compliance review of all covered positions recruited to ensure compliance with this guidance.
  2. OHR may conduct periodic accountability reviews to analyze compliance with this guidance, and all applicable federal laws and regulations.      

N. Policy Information

Owned by: Office of Human Resources, Talent Acquisition Division; Office of General Counsel
Effective date: October 10, 2017
Expiration/review date: October 10, 2019
Policy Contact Information: employmentpolicy@hhs.gov

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