Title 42 appointment

A Title 42 appointment is an excepted service employment category in the United States federal civil service. It allows scientists and special consultants to be hired as part of the Public Health Service or Environmental Protection Agency under a streamlined process "without regard to the civil-service laws". Courts have ruled that, although Title 42 appointments are exempt from hiring and compensation provisions of civil service laws, they are still entitled to protections relating to termination, including appeals to the Merit Systems Protection Board.

Title 42 hiring authority was first enacted in 1944 as part of the Public Health Service Act, and was extended to the Environmental Protection Agency on a limited basis in 2005. It is named after Title 42 of the United States Code, which contains its legal basis, and is contrasted with Title 5 employees which are normal civil service appointments.

Legislative basis

Title 42 appointments are described in ยง 209:

(f) Special consultants. In accordance with regulations, special consultants may be employed to assist and advise in the operations of the Service. Such consultants may be appointed without regard to the civil-service laws and their compensation may be fixed without regard to the Classification Act of 1923, as amended.

(g) Designation for fellowships; duties; pay. In accordance with regulations, individual scientists, other than commissioned officers of the Service, may be designated by the Surgeon General to receive fellowships, appointed for duty with the Service without regard to the civil-service laws and compensated without regard to the Classification Act of 1923, as amended, may hold their fellowships under conditions prescribed therein, and may be assigned for studies or investigations either in this country or abroad during the terms of their fellowships.

The text about "compensation... without regard to the Classification Act of 1923, as amended" is present in the original law, but is omitted in the United States Code version as obsolete, although it is still legally binding.[1]

In 2006, the District Court for the Northern District of West Virginia ruled in Afshari v. Leavitt that the text "appointed without regard to the civil-service laws" refers solely to flexibility from normal hiring formalities; protections given to excepted service positions under the Civil Service Reform Act, such as those relating to termination, still apply.[1][2] In 2016, the Court of Appeals for the Federal Circuit similarly ruled in Lal v. Merit Systems Protection Board that the Civil Service Due Process Amendments of 1990 had extended Merit Systems Protection Board appeal rights to Title 42 appointees who had served for at least two years.[3]

Regulations for special consultants are contained in 22.3, and those for fellowships are contained in 61 Subpart B.[1]

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