OHR Guidance, Attorneys, Law Clerks, and Legal Interns

Effective Date: 06/17/2022

Document Change History

Approved:

/s/
W. Robert Leavitt
Deputy Assistant Secretary for Human Resources and
Chief Human Capital Officer

June 17, 2022

A. Purpose

This guidance is provided to establish 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. Temporary Legal Intern positions filled via the Pathways Programs are also covered.

When provisions of this guidance differ from changes in applicable law or regulation, the changes in law or regulation apply.

B. Coverage

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

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 U.S.C. 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.

C. References

1. 5 U.S.C. §2108, Veteran; disabled veteran; preference eligible
2. 5 U.S.C. §2301. Merit System Principles
3. 5 U.S.C. §2302. Prohibited Personnel Practices
4. 5 U.S.C. §7511, Definition of Employee, adverse actions
5. 5 CFR §213, Excepted Service
6. 5 CFR §213.104, Special provisions for temporary, time-limited, intermittent, or seasonal appointments in Schedule A, B, C, or D
7. 5 CFR §302.101(c), Positions exempt from appointment procedures
8. 5 CFR §362, Subpart B, Pathways Programs, Internship Program
9. 5 CFR §531.212, Superior Qualifications and Special Needs Pay Setting Authority
10. HHS Instruction 302-1, Employment in the Excepted Service
11. HHS Instruction 315-2, Probationary & Trial Periods
12. HHS Instruction 330-2, Priority Placement Programs (CTAP, ICTAP, RPL, PRL)
13. HHS Instruction 362-1, Pathways Programs
14. HHS Instruction 511-1, Position Classification
15. HHS Instruction 531-1, Setting Pay Based on Superior Qualifications and Special Needs

D. Responsibilities

1. HHS Office of General Counsel (OGC):
   1. Provides all legal advice and services to agency officials within the Department. See HHS/OS/OGC Statement of Organization. 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.
   2. Approves the establishment of Attorney (GS-0905) positions at any grade level, both within and outside of OGC.
   3. Approves requests to credit certain special qualifications in lieu of one (1) year of legal experience.
2. HHS Assistant Secretary for Administration, Office of Human Resources (ASA OHR):
   1. Develops Department-wide human resources guidance and policy consistent with HHS and OPM policy, procedures and all applicable federal laws and regulations.
   2. Reviews OpDiv/StaffDiv requests to establish Attorney (GS-0905) positions at any grade level, then forwards to OGC for approval.
   3. Reviews OpDiv/StaffDiv requests to credit certain special qualifications in lieu of one (1) year of legal experience, then forwards to OGC for approval.
   4. Periodically reviews Operating Division and Staff Division (OpDiv/StaffDiv) procedures, actions, and reports to ensure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
3. OpDiv and StaffDiv Human Resources (HR) Centers:
   1. Comply with this guidance, and applicable HHS policy, federal laws and regulations.
   2. Submit requests to OGC thru ASA OHR for approval to establish Attorney (GS-0905) positions at any grade level, following the procedures in this guidance.
   3. Submit requests to OGC thru ASA OHR for approval to credit certain special qualifications in lieu of one (1) year of legal experience.

E. Definitions

1. Attorney. A 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 HHS in administrative litigation before various administrative adjudicatory agencies and assist the Department of Justice with litigation in Federal court.
2. Law Clerk. 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 CFR §213.3102 (e)).
3. Legal Intern NTE (Temporary). 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 CFR §362, Subpart B and HHS Instruction 362-1, Pathways Programs), up to GS-12 grade level, for a period not to exceed one (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. Attorney, Law Clerk and Legal Intern positions are in the excepted service.

F. Qualification Requirements

1. HHS Minimum Qualification Criteria for Attorney and Law Clerk Positions. OPM delegates responsibility for establishing qualification standards for Attorney (0905) and Law Clerk (0904) positions to agencies.
   1. Education Requirement: HHS Attorney and Law Clerk positions have a minimum requirement of a Juris Doctorate (J.D.) or Bachelor of Laws (LL.B.) from an accredited school.
   2. Bar Membership: HHS 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.
   3. 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 HHS as a Law Clerk at the GS-11 level, not to exceed 14 months. Law school graduates who have not yet been admitted to the bar and who have served at least one year in a judicial clerkship may be temporarily employed as a Law Clerk at the GS-12 level, not to exceed 14 months. The 14-month time limit is total duration, including any extensions (5 CFR §213.3102(e)).
2. Special Qualifications for Attorneys. At the discretion of the General Counsel, one (1) year of legal experience may be credited if an applicant possesses any one or combination of the following special qualifications:
   1. One year of post-law school graduate law study (Full-time or equivalent) related to position for which the candidate is being considered (LLM, combined JD/MPH, combined JD/MBA, or equivalent);
   2. One year experience serving in a legal fellowship related to the position for which the candidate is being considered;
   3. One year of significant non-legal work experience in a field related to the position for which the candidate 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 candidate is being considered);
   4. One year of post-law school judicial clerkship experience (full-time or equivalent); or
   5. Outstanding academic experience and achievement, to include awards, recognitions and honors bestowed by an academic institution; participation in a clinical program with limited practice of law (typically in third year) or community service legal clinic; participation in moot court and/or other similar competitions (e.g., negotiation, mock trial, client counseling, appellate advocacy, writing, etc.); completion of specialized certificate/curriculum programs designed to build and enhance critical professional legal skills (such as Pathways to Success Professionalism, Health Law and Policy, Indian Law, Employment Law, Trial Advocacy).
3. Qualification Requirements for Legal Interns NTE (Temporary Appointments). 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 one (1) year under the Pathways Programs Internship Program, if they meet the Pathways Programs eligibility and qualification requirements under 5 CFR §362.203(b) and the OPM Qualification Standards for Pathways Programs Intern Positions. See HHS Instruction 362-1, Pathways Programs, for information on eligibility, qualifications, and training requirements; recruitment; compensation; program extensions; breaks in program; and noncompetitive conversion to competitive service positions (5 CFR Part 362). Regulations do not permit conversion to excepted service positions.

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

* Interns (0999) are evaluated against the OPM Schedule D Group Qualification Standards for Intern positions (5 CFR 362.203(c)) and HHS Instruction 362-1, Pathways Programs).

4. Superior Qualifications and Special Needs to Support an Advanced Rate of Pay at Initial Appointment. Consistent with 5 C.F.R. § 531.212 and HHS Instruction 531-1, Setting Pay Based on Superior Qualifications and Special Needs, at the discretion of the General Counsel (or delegate), a candidate may be offered an advanced rate of pay beyond step 1, if the General Counsel (or delegate) determines the candidate has superior qualifications or skills directly related to the position being filled or based on organizational need, as described below. Such qualifications must be significantly higher than needed to be considered minimally qualified for the position (see Table above) and/or be of a more specialized quality compared to other candidates, in accordance with 5 CFR 531.212(b)(1)). OpDiv/StaffDiv HR Centers are the final approving authority.
   1. Experience in legal practice in a field related to the position for which the candidate is being considered (e.g., litigation, contracts, health care reimbursement, food and drug law, federal or state advocacy experience);
   2. Significant non-legal work experience in a field related to the position for which the candidate is being considered (e.g., working with a Federal Acquisition Regulation, health care, tribal negotiations, or Equal Employment Opportunity regulations or leading complex quasi-legal investigations, or other work experience directly applicable to the work of the position for which the attorney is being hired);
   3. Outstanding academic experience and achievement, to include a combination of awards, recognitions and honors bestowed by an academic institution; participation in clinical program with limited practice of law (typically in third year) or community service legal clinic; participation in moot court and/or other similar competitions (e.g., negotiation, mock trial, client counseling, appellate advocacy, writing) and/or completion of specialized Certificate/Curriculum programs designed to build and enhance critical professional legal skills (such as Pathways to Success Professionalism, Heath Law and Policy, Indian Law, Trial Advocacy);
   4. Success of recent efforts to recruit candidates for the same or similar positions; recent turnover in the same or similar positions; desirability of the geographic location, duties, and/or work environment associated with the position; the importance/criticality of the position to be filled and the effect on the agency if it is not filled or if there is a delay in filling it; or other factors affecting ability to successfully recruit and/or retain candidates for the position;
   5. Significant disparities between Federal and non-Federal salaries for the skills and competencies required in the position to be filled; or existing labor market conditions and employment trends, including the availability and quality of candidates for the same or similar positions; and/or
   6. OGC workforce needs, as documented in OGC’s strategic human capital plan.

Managers who wish to recommend a candidate for a step level above step 1, must include the recommended step in the initial written hiring recommendation to the General Counsel (or delegate). The recommendation should specifically address the factors above as they relate to the candidate and the office’s recruitment efforts, and reasons why pay should be set above the minimum rate of pay (step), instead of/in addition to a recruitment incentive (5 CFR 531.212(d). If approved, the manager should work with the OGC Office of Legal Resources (OLR) regarding any additional procedures required.

G. Approval Process for Newly Established Attorney Positions

1. Concurrence from OGC is required for the establishment of Attorney (0905) positions at any grade level, both within and outside of OGC.
2. When requesting establishment of a new Attorney (0905) position at any grade level:
   1. The OpDiv/StaffDiv HR Centers review requests to establish a new Attorney (0905) position within their division. The request must include a position description (PD).
   2. In the Food and Drug Administration (FDA), 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 following the steps outlined in this guidance.
   3. If the position meets the criteria for an Attorney (General Attorney (0905) series definition), the HR Center submits the following information to ASA OHR at [email protected]:
      1. Signed cover memorandum from HR Director endorsing the request and requesting OGC’s review and approval;
      2. Justification that describes the need for the position; and
      3. PD signed by the requesting authority.
   4. ASA OHR reviews and submits the information outlined above to OGC for concurrence, as required by HHS Instruction 511-1, Position Classification.
   5. OGC reviews the request and concurs or denies the request with a written explanation within 30 calendar days.
   6. OGC returns the approved or denied request to ASA OHR at [email protected] for record keeping purposes. ASA OHR notifies requesting HR Center.
   7. All documentation, including OGC concurrence must be attached to the PD and maintained with the HR Center for future reference as long as the position remains active.
   8. If an approved position is vacated and the PD and organization remains the same, the OpDiv/StaffDiv has the authority to backfill the position without additional approval.

H. Recruitment

1. Hiring Authorities.
   1. Attorney and Law Clerk positions are Schedule A excepted service positions appointed under 5 CFR §213.3101(d) and (e) respectively.
   2. Legal Intern NTE (Temporary) positions are Schedule D excepted service positions appointed under 5 CFR §213.3402(a)), Pathways Programs.
2. Law Clerk positions are filled by HR Centers in accordance with the excepted service hiring procedures outlined in 5 CFR Part 302, and HHS Instruction 302-1, Employment in the Excepted Service.
3. Legal Intern NTE (Temporary) positions are filled by HR Centers in accordance with 5 CFR Part 362, and HHS Instruction 362-1, Pathways Programs.
4. Attorney positions are exempt from the excepted service hiring procedures under 5 CFR Part 302; but are not exempt from the merit system principles (5 U.S.C. §2301) or the regulatory requirements under 5 CFR §302.101(c):
   1. Recruitment. (5 U.S.C. §2301 and Uniform Guidelines on Employee Selection Procedures). Recruitment methods must be used that attract a qualified applicant pool and notify potential applicants of Attorney vacancies to ensure fair and open competition. Notification options include, but are not limited to, notice on the HHS or division’s website; notices provided at job fairs; third party recruitment boards; or a traditional job opportunity announcement (JOA). Strategic outreach that includes legal- related publications and organizations may also be considered. Job notices must include information on the vacant position including salary; duties; geographic location; qualification requirements; and information on how to apply. HR Centers must establish written procedures for recruiting and assessing Attorney positions and apply these procedures uniformly to all applicants.
   2. Veterans’ Preference.
      1. Veteran’s preference is required to be applied as far as administratively feasible when filling Attorney positions (5 CFR §302.101(c)), i.e. military service is a positive factor when assessing Attorney candidates. Applicant lists will annotate which applicants are veterans. (For definition of administratively feasible, see OPM Vet Guide, Veterans’ Preference in Appointments, Excepted Service Employment.)
      2. When a non-preference eligible applicant is selected over a preference eligible applicant, the pass over procedures under 5 U.S.C. §3318 are not required to be followed for Attorney positions (Jarrad vs. DOJ, 669 F.3d 1320 (9th Cir. 2012)).
      3. Qualified Attorney applicants who are preference eligibles must be provided the reason(s) for non-selection upon request, as required by 5 CFR §302.101(c).
   3. HHS Priority Reemployment List (PRL). Selection priority is required by regulation to be provided to former HHS excepted service employees who are registered on HHS Priority Reemployment List (PRL) before referring the names of other qualified Attorney candidates, in accordance with 5 CFR §302.101(c) and HHS Instruction 330-2, Priority Placement Programs. Sufficient documentation must be retained to demonstrate PRL clearance for each vacancy.
      
      HR Centers do not need to provide selection priority to displaced or surplus candidates under the Career Transitions Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) or the Reemployment Priority List (RPL) before making Attorney appointments (5 CFR §§ 330.211(i) (RPL), 330.609(i) (CTAP), and 330.707(g) (ICTAP)). Note: the PRL and the RPL are two different lists. PRL covers excepted service positions and the RPL covers competitive service positions.
5. When processing personnel actions, OPM’s Guide to Processing Personnel Actions, Chapter 11, Excepted Service Appointments, is used, citing the specific Schedule A or Schedule D authority that authorizes the appointment.
6. Tenure is assigned following guidance in OPM’s Guide to Data Standards. Generally, time-limited 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.

I. Trial Periods

HHS excepted service employees serve a two (2) year trial period. Rules on initial trial periods; supervisor and manager trial periods; creditable time; failure to complete a trial period; and performance based and adverse actions taken during trial periods are covered in HHS Instruction 315-1 Probationary and Trial Periods.

J. Other Actions

1. Details are made in accordance with the rules under 5 CFR §300.301 and HHS Instruction 300-3, Details and IPA Assignments.
2. Employees reassigned to another position without promotion or change to a lower grade must meet the qualification requirements for the position (series/grade level). Consult the HHS Instruction 362-1, Pathways Programs for additional reassignment rules for Legal Interns.
3. Promotions (5 U.S.C. §§2301 and 2302).
   1. The merit system principles apply to promotion/advancement within the excepted service; therefore, the employee must compete/have competed for the proposed position/grade level(s).
   2. Promotions within the excepted service are not subject to the time-in-grade restrictions outlined in 5 CFR Part 300, Subpart F; however, employees must meet the qualification requirements for the position (series and grade).
   3. Time-in-grade restrictions outlined in 5 CFR Part 300, Subpart F, apply to movement to or within the competitive service; therefore, while promotions within the excepted service are not subject to time-in-grade; promotions upon non-competitive conversion to the competitive service (i.e., Legal Interns covered by this guidance) are subject to time-in-grade restrictions.
4. The time-limits for temporary, time-limited, intermittent, and seasonal Attorney appointments are described under 5 CFR §213.104. (Appointment time-limits for Law Clerks and Legal Interns are covered in this guidance under Section E., Definitions.)

K. Adverse Actions and Appeals

1. Excepted service employees who meet the definition of ‘employee’ under 5 U.S.C. § 7511(a) (1)(B-C) generally 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).
3. Individuals entitled to priority consideration who are preference eligibles, or suffered compensable injury, have appeal rights to the MSPB if they believe their reemployment rights were violated (5 CFR §§302.101(c); 302.103; and 302.501).

L. Documentation and Accountability

1. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. Generally, all records created in a given year must be retained for a total of three (3) full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, Courts, the Office of General Counsel etc. that the matter has been fully litigated, or resolved, and closed.
2. ASA OHR may conduct periodic accountability reviews to analyze compliance with this guidance, HHS and OPM policy and guidance, and all applicable federal laws and regulations.

M. Guidance Information

Owned by: Office of Human Resources, Policy and Accountability Division (PAD)
Effective date: November 1, 2016, Rev 06/17/2022
Contact Information: [email protected]