[Federal Register Volume 90, Number 246 (Tuesday, December 30, 2025)]
[Proposed Rules]
[Pages 61070-61084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-23974]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 90, No. 246 / Tuesday, December 30, 2025 /
Proposed Rules
[[Page 61070]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 230, 315, 432, 751, and 752
[Docket ID: OPM-2025-0013]
RIN: 3206-AO96
Streamlining Probationary and Trial Period Appeals
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing a rule
to change the circumstances and procedures for adjudicating appeals
from employees covered by these provisions and terminated during their
probationary or trial periods and supervisors and managers who fail to
complete their probationary periods. This change follows the
President's rescinding of the regulations at subpart H of part 315 of
this chapter as directed by Executive Order 14284. As proposed,
employees would file appeals limited to: discrimination based on
partisan political reasons or marital status; and failure to follow
procedures for terminations based upon pre-appointment reasons. OPM
would replace the Merit Systems Protection Board (MSPB) as the
adjudicative agency for all appeals. Employees who wish to pursue
claims of discrimination under statutes administered by the Equal
Employment Opportunity Commission (EEOC) would not be allowed to raise
these claims with OPM.
DATES: Comments must be received on or before January 29, 2026.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by the
following method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for sending comments.
All submissions must include the agency name and docket number or
RIN for this rulemaking. Please arrange and identify your comments on
the regulatory text by subpart and section number; if your comments
relate to the supplementary information, please refer to the heading
and page number. All comments received will be posted without change,
including any personal information provided. To ensure that your
comments will be considered, you must submit them within the specified
open comment period. Before finalizing this rule, OPM will consider all
comments within the scope of the regulations received on or before the
closing date for comments. OPM may make changes to the final rule after
considering the comments received.
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be
found in the docket for this rulemaking at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Carol Matheis by email at
[email protected] or by phone at (202) 606-2930.
SUPPLEMENTARY INFORMATION: OPM proposes this rule to establish
streamlined appeal procedures for employees terminated during their
probationary or trial periods and supervisors and managers who fail to
complete their probationary periods. Under Executive Order (E.O.)
14284, the President rendered the probationary period appeal procedures
in subpart H of part 315 of this chapter ``inoperative and without
effect'' and directed OPM to rescind those regulations and make
conforming amendments. OPM published a final rule implementing those
directives on June 24, 2025, at 90 FR 26727. E.O. 14284 delegated
authority to OPM to establish such procedures by regulation. The
proposed rule removes authority from the MSPB for actions under subpart
I of part 315 of this chapter and grants authority to OPM to adjudicate
appeals. The proposal would grant authority to OPM to adjudicate
appeals by employees terminated during their probationary or trial
periods and by supervisors and managers who fail to complete their
probationary periods (akin to the former Sec. 315.806 and the current
Sec. 315.908, respectively). OPM will only adjudicate appeals that
allege either discrimination based on partisan political reasons or
marital status; or an agency's failure to follow procedures for
terminations based upon pre-appointment reasons. Employees will not,
however, be able to attach claims of unlawful discrimination under the
laws administered by the EEOC to an appeal as previously permitted
before issuance of E.O. 14284. Employees may pursue such claims at the
EEOC to the same extent they could do so before issuance of E.O. 14284.
Additionally, when OPM adjudicates an appeal, it will do so based
on the written record without the need of extensive discovery. However,
where OPM determines additional information is necessary, it may
conduct an investigation or audit into an agency's termination action.
An appellant will not have a right to a hearing, but OPM may conduct
one only when necessary and where it will aid in the efficient
resolution of an appeal. Lastly, the proposed rule provides a procedure
for an appellant to seek reconsideration of the decision.
I. Background
a. History of Probationary Periods in the Federal Service
Since the dawn of the modern civil service, it has been widely
recognized--by courts, by OPM, and by OPM's predecessor agency, the
Civil Service Commission--that Federal employees serving a probationary
or trial period had far more limited procedural rights regarding their
terminations than other Federal employees.
``Probation'' comes from the Latin ``probatio,'' \1\ which means
``trying, proving'' or ``a trial, inspection, [or] examination.'' \2\
Ballentine's Law Dictionary defines ``probationary status'' in relevant
part as ``[a] person having a period of probation in a civil service
position by way of a further test of his qualifications for
appointment.'' \3\
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\1\ Webster's Revised Unabridged Dictionary of the English
Language, available at https://www.websters1913.com/words/Probation.
\2\ Charlton T. Lewis & Charles Short, A Latin Dictionary,
Oxford: Clarendon Press, available at https://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0059:entry=probatio (1879).
\3\ Ballentine's Law Dictionary, (3rd ed. 1969).
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[[Page 61071]]
The concept of a probationary, or trial, period in the U.S. civil
service dates to the Pendleton Civil Service Act of 1883 (Pendleton
Act). The Pendleton Act required ``that there shall be a period of
probation before any absolute appointment or employment aforesaid.''
\4\ The new Civil Service Commission created by the Pendleton Act
reflected a similar understanding of probation. In its first annual
report in 1884, the Commission characterized the probationary period as
lasting ``six months before any absolute appointment can be made. At
the end of this time the appointee goes out of the service unless then
reappointed.'' \5\ Two years later, the Commission wrote in its third
annual report that ``doing the public work is precisely what the Merit
System provides. If at its termination the appointing officer is not .
. . willing to make an unconditional appointment, the probationer is .
. . absolutely out of the service without any action on the part of the
Government.\6\ In 1897 President William McKinley signed E.O. 101,
Amending Civil Service Rules Regarding Removal from Service, adding a
number 8 to Rule II that stated: ``No removal shall be made from any
position subject to competitive examination except for just cause and
upon written charges filed with the head of the Department, or other
appointing officer, and of which the accused shall have full notice and
an opportunity to make defense.''
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\4\ The Pendleton Act of 1883, 22 Stat. 403, 404 (1883),
available at https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/22/STATUTE-22-Pg403a.pdf.
\5\ First Annual Report of the United States Civil Service
Commission to the President (1884), p. 29, available at https://babel.hathitrust.org/cgi/pt?id=nnc1.cu09006737&seq=9.
\6\ Third Annual Report of the United States Civil Service
Commission to the President (1886), p. 36, available at https://babel.hathitrust.org/cgi/pt?id=njp.32101073361022&seq=40.
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In 1910, the Court of Claims explained in the case of Ruggles v.
United States that probationers lacked any cognizable legal rights
under the rules or the Pendleton Act.\7\
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\7\ 45 Ct. Cl. 86 (Ct. Cl. 1910).
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With the enactment of the Lloyd-Lafollette Act of 1912, Congress
created the first legislative codification of protection against
removal for civil servants. The Act established ``[t]hat no person in
the classified civil service of the United States shall be removed
therefrom except for such cause as will promote the efficiency of said
service.'' \8\ The Act also imposed certain procedural requirements on
removals including advance notice and an opportunity to respond in
writing.\9\ However, Congress did not establish employment protections
for probationary employees.
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\8\ The Lloyd-La Follette Act, 37 Stat. 555 (1912), as amended,
62 Stat. 354 (1948), 5 U.S.C.A Sec. Sec. 652(a).
\9\ Id.
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After the passage of the Lloyd-La Follette Act and the court's
decision in Ruggles, the Civil Service Commission took the opportunity
to clarify that the removal rules first established in 1897 should
never have been treated as creating any serious limits on removing
civil servants from employment.\10\ Regarding probationers, the
Commission quoted from Ruggles that probationers have no cognizable
right to their employment \11\ and that the Lloyd-La Follette Act's
protections did not apply to probationers at all.\12\ Over the next
decade, the Commission would repeatedly cite the Ruggles decision and
its assessment of the Lloyd-La Follette Act.\13\ The Court of Claims
also repeated its assessment that the Lloyd-La Follette Act did not
convey any right for a probationary employee over his or her position
45 years after its decision in Ruggles.\14\
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\10\ See 29th Annual Report of the United States Civil Service
Commission for the Fiscal Year Ended June 30, 1912 (1913), p. 21,
available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152033&seq=11.
\11\ Id. at p. 96.
\12\ Id. at p.112.
\13\ See, e.g., 30th Annual Report of the United States Civil
Service Commission for the Fiscal Year Ended June 30, 1913 (1914),
p. 91, available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152041&seq=97, 31st Annual Report of the United
States Civil Service Commission for the Fiscal Year Ended June 30,
1914 (1915), pp. 79, 95, available at https://babel.hathitrust.org/cgi/pt?id=coo.31924054241355&seq=223; 32nd Annual Report of the
United States Civil Service Commission for the Fiscal Year Ended
June 30, 1915 (1915), pp. 72, 89, available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152066&seq=9; 33rd Annual
Report of the United States Civil Service Commission for the Fiscal
Year Ended June 30, 1916 (1916), pp. 48, 66, available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152074&seq=112; 38th
Annual report of the United States Civil Service Commission for the
Fiscal Year Ended June 30, 1921 (1921), pp. 52, 75, available at
https://babel.hathitrust.org/cgi/pt?id=coo.31924103152124&seq=8.
\14\ Nadelhaft v. United States, 132 Ct. Cl. 316, 319, 131 F.
Supp. 930, 932-33 (Ct. Cl. 1955).
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By 1922, the Commission expressed concerns that too few
probationers were being terminated and that agencies were not
adequately using the probationary period as a screening mechanism.\15\
Consistent with that concern, over the next couple of decades, the
Commission maintained the view, embodied in its regulations, that
probationers retained virtually no protection from removal at all. For
example, in its 1938 regulations, the Commission described the removal
procedures for probationers as follows: ``Probationer; charges not
necessary. A probationer may be separated from the service at any time
during or at the expiration of the probationary period without further
formality than a written notification setting forth the reasons in
full.'' \16\ The Commission would also repeat its complaint about
agencies' inadequate use of the probationary period to screen out
probationers several times, including in 1929, 1934, 1948, and
1949.\17\
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\15\ 39th Annual report of the United States Civil Service
Commission for the Fiscal Year Ended June 30, 1922 (1922), p. xxi,
available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152140&seq=9 (``The proportion of failures on
probation seems small to the commission, being only about one-half
of 1 per cent. This may indicate that appointing officers do not in
all cases fully scrutinize the conduct and capacity of the
probationers and perform the duty of dropping those found
unsuitable.'').
\16\ 5 CFR 12.101(b) (1938), available at https://www.loc.gov/item/cfr1938201-T5CIP12/.
\17\ 46th Annual Report of the United States Civil Service
Commission for the Fiscal Year Ended June 30, 1929 (1929), p. 35
available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910353&seq=5; 51st Annual Report of the United
States Civil Service Commission for the Fiscal Year Ended June 30,
1934 (1934), pp. 22-23 (1934), available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112113390196&seq=83; 65th
Annual Report of the United States Civil Service Commission for the
Fiscal Year Ended June 30, 1948 (1948), p. 1, available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112069434923&seq=15; 66th
Annual Report of the United States Civil Service Commission for the
Fiscal Year Ended June 30, 1949 (1950), p. 12, available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112069434923&seq=101.
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The Veterans Preference Act of 1944 expanded civil service
protections beyond the Lloyd-La Follette Act to preference eligible
Federal employees, but it explicitly excluded probationers.\18\
President John F. Kennedy later expanded these protections beyond
preference eligibles. As the Civil Service Commission recognized,
``[w]ith the issuance of Executive Orders 10987 and 10988 on January
17, 1962, a new era of greatly expanded appeals rights for employees
was opened.'' \19\ However, nothing in these E.O.s or implementation by
the Civil Service Commission attempted to expand application of those
protections to probationers.
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\18\ Public Law 78-359, 58 Stat. 387 (codified, as amended in
part, at 5 U.S.C. 3309-3320), available at https://tile.loc.gov/storage-services/service/ll/uscode/uscode1940-00900/uscode1940-009005017/uscode1940-009005017.pdf.
\19\ 79th Annual Report of the United States Civil Service
Commission for the Fiscal Year Ended June 30, 1962 (1962), p. 15,
available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910338&seq=237&q1.
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For a brief period of time starting in 1958, the Civil Service
Commission instituted a rule granting broader appeal
[[Page 61072]]
rights to probationary employees.\20\ But in 1962, the Commission
revoked these regulations.\21\ In the following year, the Commission
issued new regulations establishing much more limited appeal rights for
probationary employees that, until E.O. 14284, permitted appeals based
on improper discrimination or terminations for matters arising before
employment.\22\
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\20\ 75th Annual Report of the United States Civil Service
Commission for the Fiscal Year Ended June 30, 1958 (1958), p. 4,
available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910361&seq=495. See also 5 CFR 9.103 (1960),
available at https://www.loc.gov/item/cfr1960002-T5CIP9/.
\21\ 27 FR 4755, at 4759 (May 19, 1962).
\22\ 28 FR 9973, at 10052 (Sept. 14, 1963).
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The passage of the Civil Service Reform Act of 1978 (CSRA) formed
the basis of the current law governing probationary employment. The
relevant language, unchanged since 1978, provides the President with
substantial authority to issue regulations inter alia establishing the
conditions in which an appointment in the competitive service becomes
final.\23\ The Senate Committee for Government Affairs explained in its
report on the CSRA the importance of preserving executive discretion to
remove probationers as ``an extension of the examining process to
determine an employee's ability to actually perform the duties of the
position. It is inappropriate to restrict an agency's authority to
separate an employee who does not perform acceptably during this
period.'' \24\ Courts seized on this language in interpreting the
rights of probationary employees.\25\ As the United States Court of
Appeals for the District of Columbia explained in Dep't of Justice v.
Federal Labor Relations Authority, Congress chose not to extend the
same employment protections afforded tenured employees to probationary
employees because it ``recognized and approved of the inextricable link
between the effective operation of the probationary period and the
agency's right to summary termination.'' \26\ Similarly, courts
elsewhere recognized Congress' intentional limitation on protections
for probationary employees.\27\ Further, because Congress did not
provide the same employment protections to probationary employees,
probationers do not have a property interest in their employment and
therefore have no constitutional right to due process.\28\
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\23\ 5 U.S.C. 3321(a).
\24\ S. Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978).
\25\ See, e.g., Dep't of Justice v. FLRA, 709 F.2d 724, 730
(D.C. Cir. 1983); U.S. v. Connolly, 716 F.2d 882, 886 (Fed. Cir.
1983); Nat'l Treasury Emps. Union v. FLRA, 848 F.2d 1273, 1275 (D.C.
Cir. 1988).
\26\ FLRA, 709 F.2d at 728.
\27\ See, e.g., Harris v. Moyer, 620 F. Supp. 1262, 1265 (N.D.
Ill. 1985; Schroeder v. United States, 10 Cl. Ct. 801, 803 (1986);
Allen v. Dep't of Air Force, 694 F. Supp. 1527, 1529 (W.D. Okla.
1988; Yates v. Dep't of the Air Force, 115 F. App'x 57, 59 (Fed.
Cir. 2004; Nat'l Treasury Emps. Union v. FLRA, 737 F.3d 273, 276
(4th Cir. 2013); Crabtree v. Johnson, No. 2:12-cv-1206, 2014 U.S.
Dist. LEXIS 119588, at *16 (S.D. Ohio Aug. 27, 2014); Jones v.
United States DOJ, 111 F. Supp. 3d 25, 30 n.5 (D.D.C. 2015); and
Goodwin v. Wormuth, 744 F. Supp. 3d 605, 615 (D.S.C. 2024).
\28\ Pharr v. MSPB, 173 Fed. Appx. 817, 819 (Fed. Cir. 2006)
(holding probationary employee did not have a property interest in
his employment and thus had no valid due process claim).
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In addition, the CSRA gives OPM extensive discretion in regulating
probationary periods. Pursuant to 5 U.S.C. 1301, ``The Office of
Personnel Management shall aid the President, as he may request, in
preparing the rules he prescribes under this title for the
administration of the competitive service.'' Under 5 U.S.C. 1104(a)(1):
``the President may delegate, in whole or in part, authority for
personnel management functions, including authority for competitive
examinations, to the Director of the Office of Personnel Management.''
Further, OPM ``shall establish standards which shall apply to the
activities of the Office or any other agency under authority delegated
under subsection (a) of this section.'' \29\ And the OPM Director has
the responsibility ``to prescribe regulations and to ensure compliance
with the civil service laws, rules, and regulations,'' and ``execut[e],
administer[ ], and enforc[e] . . . the civil service rules and
regulations of the President and the Office and the laws governing the
civil service.'' \30\
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\29\ 5 U.S.C. 1104(b)(1).
\30\ 5 U.S.C. 1104(b)(3), 1103(a)(5).
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As a general matter, ``Congress wrote the statute it wrote,'' and
``[t]hat congressional election settles'' questions of interpretation.
See CSX Transp., Inc. v. Alabama Dept. of Revenue, 562 U.S. 277, 296
(2011). In this light, the best reading of the statute's absence of an
explicit directive is that Congress intended for the President, through
OPM, to retain maximum flexibility to determine the procedures under
which a probationer may be removed, including which entity is best
positioned to serve as the venue for appeals of such a removal. Absent
Presidential or Congressional action, the authority to grant employees
serving a probationary period employment protections resides with OPM.
Courts have recognized that Congress charged OPM with the authority to
establish conditions of employment including procedural
protections.\31\ This includes rights to challenge removals in
violation of these protections.\32\
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\31\ Nat'l Treasury Emps. Union, 737 F.3d at 277-78.
\32\ FLRA, 709 F.2d at 725 n. 3.
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b. Executive Order 14284
Concerns that agencies have not been effectively utilizing
probationary periods have continued into the 21st century. In 2005, the
MSPB reported to the President and to Congress that Federal agencies
were failing to use the probationary period to assess and remove
probationers.\33\ In conducting a survey of agency supervisors, the
MSPB found that, even though supervisors are aware that the
probationer's appointment is not final, supervisors tend to treat their
probationers as fully appointed Federal employees, with all the rights
and responsibilities that implies.'' The MSPB identified that the
failure of the Federal Government to maximize the probationary period
is a cultural problem pervasive across all levels. The problem appeared
to be a systemic one, as ``supervisors expressed frustration at the
lack of agency support for the full use of the probationary period, and
even a number of probationers were perturbed by what they saw as
agencies' failure to use the probationary period to remove marginal and
poor performers.'' The MSPB reaffirmed the 2005 report in a 2019
Research Brief, acknowledging that ``MSPB found that supervisors are
sometimes reluctant to remove a probationer who is not performing well
in the position, even though it is easier to remove a probationer than
an employee with a final appointment.'' \34\
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\33\ See, generally, Merit Systems Protection Board, The
Probationary Period: A Critical Assessment Opportunity, Report to
the President and the Congress of the United States (August 2005),
available at https://www.mspb.gov/studies/studies/The_Probationary_Period_A_Critical_Assessment_Opportunity_(2005)_2245
55.pdf.
\34\ Merit Systems Protection Board, Remedying Unacceptable
Employee Performance in the Federal Civil Service, Research Brief
(June 18, 2019), available at https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.
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In 2015, the Government Accountability Office (GAO) issued a report
regarding Federal workforce performance.\35\ GAO interviewed a number
of chief human capital officers in Federal agencies and found that
``[a]gencies may not be using the supervisory probationary period as
intended.'' The GAO found that ``supervisors are often not making
performance-related decisions about an
[[Page 61073]]
individual's future likelihood of success with the agency during the
probationary period.'' This typically happened for two reasons: ``(1)
the supervisor may not know that the individual's probationary period
is ending, and (2) the supervisor has not had enough time to observe
the individual's performance in all critical areas of the job.'' The
GAO concluded that the probationary period needed to be ``more
effectively used by agencies. . . . [I]mproving how the probationary
period is used could help agencies more effectively deal with poor
performers.''
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\35\ Government Accountability Office, Federal Workforce:
Improved Supervision and Better Use of Probationary Periods Are
Needed to Address Substandard Employee Performance, GAO-15-191
(February 2015), available at https://www.gao.gov/assets/gao-15-191.pdf.
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To this day, poor performance in the civil service has not been
adequately addressed. OPM's 2024 Federal Employee Viewpoint Survey
indicated that 40 percent of Federal employees reported that poor
performers in their units would usually ``[r]emain in the work unit and
continue to underperform[.]'' \36\ The next highest percentage of
respondents--21 percent--answered ``Do Not Know[.]'' Only 47 percent
agreed that ``[i]n my work unit, differences in performance are
recognized in a meaningful way.'' 27 percent disagreed with that claim.
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\36\ Office of Personnel Management, Federal Employee Viewpoint
Survey Results (2024), https://www.opm.gov/fevs/reports/opm-fevs-dashboard/.
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President Trump sought to address this longstanding issue when he
signed E.O. 14284, ``Strengthening Probationary Periods in the Federal
Service,'' on April 24, 2025.\37\ E.O. 14284 established Civil Service
Rule XI to govern Federal agencies' use of probationary and trial
periods. Under Civil Service Rule XI, agencies must assess and certify
their employees serving probationary or trial periods before finalizing
their appointments to the Federal service. Civil Service Rule XI
provides four non-mandatory criteria for the agency head, or designee,
to consider in determining whether a probationary employee's continued
employment advances the public's interest. Where an agency determines
not to certify an employee's continued employment, the employee's
appointment expires before the end of the employee's tour of duty on
the last day of their probationary or trial period. The agency also
retains the discretion to dismiss them prior to the expiration of their
probationary or trial period.
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\37\ 90 FR 17729 (Apr. 24, 2025).
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Section 4 of E.O. 14284 also revoked the termination and appeal
procedures under subpart H of part 315 of this chapter. These
procedures, which applied upon initial appointment to a career career-
conditional competitive service position, included the requirement for
agencies to provide, at a minimum, written notice of the agency's
conclusions as to the inadequacies of an employee's performance or
conduct when terminating an employee during a probationary period;
procedures and bases for appealing a termination during a probationary
period; and the authority of the MSPB to adjudicate appeals. Under
Civil Service Rule 11.6 (5 CFR 11.6), the President delegated authority
to the Director of OPM to issue rulemaking on the circumstances and
procedures for employees to appeal their termination from a
probationary or trial period.
Prior to E.O. 14284, OPM established through regulation the
circumstances and procedures for appealing terminations during an
employee's probationary period. Congress defined the term ``employee''
for purposes of identifying who could appeal certain adverse actions to
the MSPB to exclude employees serving a probationary or trial
period.\38\ However, Congress also granted, inadvertently or not,\39\
appeal rights to employees in the (1) competitive service who complete
one year of current continuous service under other than a temporary
appointment limited to one year or less; (2) excepted service who are
preference eligibles that completed one year of current continuous
service in the same or similar positions in either an Executive Agency
or the United States Postal Service or Postal Rate Commission; or (3)
excepted service who complete two years of current continuous service
in the same or similar positions in an Executive agency under other
than a temporary appointment as defined by OPM regulations in 5 CFR
213.104(a)(1).\40\ For employees who did not meet the definition of
employee, they could not appeal, for example, a termination from the
Federal service. However, the Civil Service Commission and, later, OPM
exercised its authority to prescribe the circumstances in which an
employee serving a probationary period in the competitive service could
appeal to the Civil Service Commission or MSPB, respectively.\41\
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\38\ 5 U.S.C. 7511(a)(1).
\39\ Merit Systems Protection Board, ``Navigating the
Probationary Period after Van Wersch and McCormick,'' September
2006, available at https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.
\40\ 5 U.S.C. 7511(a)(1)(A)(ii), (a)(1)(B)(ii), and
(a)(1)(C)(ii); Mitchell v. MSPB, 741 F.3d 81 (Fed.Cir. 2014)
(holding that ``temporary appointment'' refers to the regulatory
definition, which currently limits a temporary appointment to one
year or less).
\41\ See, e.g., 33 FR 12422-23; 40 FR 15380; 44 FR 48951-52; 55
FR 29339; 79 FR 43922.
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Likewise, Congress did not establish through statute the
circumstances under which supervisors and managers failing their
probationary period have the right to appeal their assignment to
nonsupervisory or nonmanagerial positions.\42\ Nor did Congress specify
that the MSPB adjudicate such appeals. However, OPM exercised its
regulatory authority to authorize the MSPB to adjudicate such appeals
that raise discrimination based on partisan political reasons or
marital status.\43\
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\42\ 5 U.S.C. 3321.
\43\ 44 FR 44812.
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OPM proposes to establish limited grounds for employees serving a
probationary period in the competitive service to appeal their
terminations. Under these proposed regulations, such employees will be
able to challenge their terminations for alleged discrimination based
on partisan political reasons or marital status. These limited grounds
of appeal for probationary terminations reflect the historical
principle that probationary periods serve as a critical evaluation
phase for new Federal employees, and thus that agencies should enjoy
great flexibility in separating employees serving probationary or trial
periods. Some non-veteran excepted service employees may qualify for
appeal rights under other regulatory or legal provisions not covered by
this rule. It should also be noted that excepted service employees
serving in an appointment in the excepted service outside of part 307
of this chapter did not have such appeal rights unless otherwise
entitled by statute, and OPM is maintaining that policy. Providing
limited grounds of appeal also ensures agencies adhere to the Merit
System Principles and corrects agency actions taken contrary to these
principles consistent with OPM's statutory authority.\44\ Notably, in
Civil Service Rule XI, the President designated OPM as the body which
defines the ``circumstances under and procedures by which employees
terminated from a probationary or trial period may appeal such
termination.\45\ Further, ``[e]xcept as otherwise required by law, such
appeals shall be the sole and exclusive means of appealing terminations
during probationary or trial periods.\46\
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\44\ 5 U.S.C. 1103(a)(7) and (c)(2)(f), 1104(b)(2). See also 5
CFR 5.3, 10.2-10.3.
\45\ 5 CFR 11.6 (a).
\46\ 5 CFR 11.6 (b).
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II. Proposed Amendments
OPM proposes modifying its regulations in 5 CFR chapter I,
subchapter B, by amending part 315 and
[[Page 61074]]
adding part 751 as explained below to promote accountability and
improve the efficient adjudication of employee appeals.
OPM proposes to revise paragraph (f) of Sec. 230.402 to identify
the proposed part 751 regulations as the applicable appeal procedures
for employees serving an emergency-indefinite appointment in a national
emergency. The current references to Sec. Sec. 315.804 and 315.805 are
no longer valid after those sections were removed pursuant to E.O.
14284.\47\ The revisions also clarify that the first year of service
for employees serving an emergency-indefinite appointment in a national
emergency is a probationary period, not a trial period as the
regulation currently states.
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\47\ See 90 FR 26727.
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OPM proposes to update an invalid reference to subpart H of part
351 (which has been removed) in Sec. 315.201(ato refer, instead, to 5
CFR part 11. OPM also proposes to revise paragraph (b) of Sec. 315.908
such that OPM will adjudicate appeals by supervisors or managers
assigned to nonsupervisory or nonmanagerial positions for failing a
probationary period under subpart I of part 315.
OPM proposes to establish a new part 751 to incorporate many of the
provisions rescinded by E.O. 14284. The proposed Sec. 751.101(a)
establishes a right to appeal to OPM for employees, as specifically
defined at Sec. 751.101(f), terminated during the probationary or
trial period required under Civil Service Rule XI, or who are assigned
to a nonsupervisory or nonmanagerial position for failure to complete a
supervisory or managerial probationary period required under subpart I
of part 315 of this chapter.
OPM believes that tasking its Merit System Accountability and
Compliance (MSAC) office with adjudication of probationer appeals will
provide much needed clarity and efficiency. MSAC is not only equipped,
but best positioned, to handle this task. MSAC is an external-facing
organization within OPM with longstanding oversight and adjudicative
functions. As part of those functions, MSAC provides employees with
administrative procedural rights to challenge agency determinations
without having to seek redress in Federal court. Distinct from MSPB, it
has the infrastructure in place to adjudicate probationer appeals
effectively without being subject to restrictions arising from the lack
of a quorum. Specifically, ``MSAC is responsible for ensuring that
Federal agency human resources programs are effective and efficient and
comply with merit system principles and related civil service
regulations,'' \48\ which includes oversight of agency personnel
actions. MSAC also has ``a long history of adjudicating federal
employee classification appeals, as well as Fair Labor Standards Act
(FLSA), compensation and leave, and declination of reasonable offer
claims.'' \49\ MSAC ``offer[s] federal employees an independent review
of agency personnel decisions. OPM's decision in these cases is the
final administrative decision.'' \50\
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\48\ U.S. Off. of Personnel Management Off. of the Inspector
General, ``Final Evaluation Report: Evaluation of the Merit System
Accountability and Compliance Office,'' Rept. No. 2021-OEI-011 (Dec.
12, 2022), available at https://www.oversight.gov/sites/default/files/documents/reports/2022-12/Final-Report-2021-OEI-001.pdf.
\49\ See U.S. Off. of Personnel Management, Adjudications,
available at https://www.opm.gov/compliance/adjudications/.
\50\ Id.
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Housing probationer appeals within MSAC (OPM's oversight and
adjudicative body) would additionally separate the adjudicative
function within OPM from OPM's policymaking function, which is housed
in its Workforce Policy & Innovation (WPI) office.\51\ OPM would
continue to maintain appropriate administrative separation between its
policy arm (WPI) and adjudication arm (MSAC).
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\51\ See U.S. Off. of Personnel Management, FY 2026
Congressional Budget Justification and Annual Performance Plan at p.
26, available at https://www.opm.gov/about-us/fy-2026-congressional-budget-justification/fy-2026-congressional-budget-justification.pdf.
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Meanwhile, MSPB has been considerably backlogged due to a
protracted period without a quorum that leaves employees and agencies
in limbo. Between January 7, 2017, and March 3, 2022, and between April
10 and October 27, 2025, MSPB lacked a quorum, which prevented it from
reviewing cases and resulted in a considerable backlog.\52\ In light of
the Senate's failure to confirm nominees to the MSPB in a timely way, a
process over which the executive branch lacks any meaningful control,
prudent governance requires the executive to minimize disruption in
personnel operations caused by loss of a quorum at MSPB. MSPB too has
mitigated, as far as practicable, the effects of a future lack of
quorum on delays. 89 FR 72957 (Sept. 9, 2024). However, this lack of
faith in its own ability to timely adjudicate appeals provides
additional evidence of the prudence of relocating probationer appeals
to MSAC. While employees may lack some procedural mechanisms if appeals
are transferred to MSAC as contemplated by this rule, OPM believes
streamlining the process will not have a consequential impact upon the
substantive outcomes of the appeals, while improving the efficiency and
consistency of the process.
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\52\ U.S. Merit Sys. Prot. Bd., Frequently Asked Questions About
the Lack of Quorum Period and Restoration of the Full Board (Nov.
14, 2025), available at https://www.mspb.gov/FAQs%20Absence%20of%20Board%20Quorum%2011-14-25.pdf.
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The proposed Sec. 751.101(a) also establishes that an individual
serving a probationary period does not have a right to appeal their
termination under this part if the individual has completed one year of
current continuous service under other than a temporary appointment
limited to 1 year or less and is not otherwise excluded by the
provisions of that subpart. Instead, the appropriate procedures
established under 5 CFR part 432 or 752 may apply unless otherwise
excluded by the provisions of those parts. OPM notes that it has
proposed to amend referenced provisions of 5 CFR parts 432 and 752 in
its rulemaking under RIN 3206-AO80 (90 FR 17182); however, the cross-
references proposed in this rule would be unaffected by the changes
proposed in that rulemaking.
The proposed Sec. 751.101(b) establishes the burden of proof as a
``preponderance of the evidence'' standard when establishing the
timeliness of the appeal, OPM jurisdiction, and the appealable issues
under Sec. 751.101(c), and places that burden of proof on the
employee.
The proposed Sec. 751.101(c) establishes the appealable issues
appellants may raise to OPM. These issues mirror those under subpart I
and the now-rescinded subpart H 315 with one exception. OPM is not
proposing to continue to allow appellants to attach complaints of
discrimination that would otherwise be heard by the EEOC. OPM believes
the EEOC is better suited to adjudicate these matters given its
expertise in administering and overseeing the anti-discrimination laws.
Removing these issues from the probationary or trial period appeals
process would also improve the efficiency in resolving probationary and
trial period termination appeals.
The proposed Sec. 751.101(d) explains that no other issues may be
appealed under this part.
The proposed Sec. 751.101(e) establishes the procedures in this
section as the sole and exclusive means for resolving appeals from
terminations during probationary or trial periods consistent with E.O.
14284. The proposed Sec. 751.101(f) defines the term ``employee'' to
limit the scope of appeals to only those employees who
[[Page 61075]]
would be able to appeal an action before E.O. 14284.
The CSRA ``creates an integrated scheme of administrative and
judicial review, wherein the Congress intentionally provided--and
intentionally chose not to provide--particular forums and procedures
for particular kinds of claims.'' \53\ Congress allowed certain
individual Federal employees who are affected by agency personnel
decisions to challenge those decisions ``by litigating their claims
through the statutory scheme in the context of [a] concrete'' dispute,
with limitations imposed by Congress on the kinds of claims and
remedies available.\54\
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\53\ Am. Fed'n of Gov't Emps. v. Secretary of the Air Force, 716
F.3d 633, 636 (D.C. Cir. 2023) (alterations, citation, and
quotations marks omitted).
\54\ See Am. Fed'n of Gov't Emps. v. Trump, 929 F.3d 748, 757
(D.C. Cir. 2019).
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The CSRA's review scheme is both ``comprehensive and exclusive.''
\55\ It is ``comprehensive'' in that ``[i]t regulates virtually every
aspect of federal employment and prescribes in great detail the
protections and remedies applicable to adverse personnel actions,
including the availability of administrative and judicial review.''
\56\ It is ``exclusive,'' meanwhile, in that ``[i]t constitutes the
remedial regime for federal employment and personnel complaints.'' \57\
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\55\ Grosdidier v. Broad. Bd. of Govs., 560 F.3d 495, 497 (D.C.
Cir. 2009).
\56\ Nyunt v. Broad. Bd. of Gov., 589 F.3d 445, 448 (D.C. Cir.
2009) (cleaned up).
\57\ Id.
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The CSRA's review scheme is exclusive even when ``the CSRA provides
no relief,'' and in fact, ``precludes other avenues of relief.'' \58\
In other words, ``the CSRA is the exclusive avenue for suit even if the
plaintiff cannot prevail in a claim under the CSRA.'' \59\ ``Congress
designed the CSRA's remedial scheme with care, `intentionally
providing--and intentionally not providing--particular forums and
procedures for particular kinds of claims.' '' \60\
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\58\ Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004).
\59\ Grosdidier, 560 F.3d at 497.
\60\ Id. (quoting Filebark v. Dep't of Transp., 555 F.3d 1009,
1010 (D.C. Cir. 2009)); Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir.
2005) (Roberts, J.).
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In contrast to covered employees, probationers generally do not
enjoy the same guaranteed right to appeal termination decisions to the
MSPB, as Congress excluded them from the definition of ``employee[s]''
for purposes of the CSRA's Chapter 75.\61\ Instead, probationers are
still considered ``applicants'' under the extended hiring and
evaluation period of the CSRA.\62\ And the CSRA, which sets forth the
Merit System Principles underlying the entire statutory scheme and
provides remedies for alleged violations of those principles, generally
applies to both ``applicants and employees.'' \63\
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\61\ See 5 U.S.C. 7511(a)(1).
\62\ Id.
\63\ 5 U.S.C. 2302(a)(2)(A)(i)-(xii) (identifying ``personnel
action[s]'' that may form the basis for alleged prohibited personnel
practices ``with respect to an employee in, or applicant for, a
covered position in any agency'').
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Therefore, the administrative review scheme provided in this
regulation is the sole and exclusive means for a probationary employee
to appeal his or her termination. The proposed Sec. 751.102
establishes where appeals and reconsiderations are filed at OPM and a
30-day deadline from the effective date of the action from which appeal
is taken. OPM is proposing to require appeals to be filed
electronically and for all parties and their representatives to
register with OPM's electronic filing system. However, OPM may exempt a
party or representative from the electronic filing requirements for
good cause shown. All appeals, reconsiderations, evidence, orders,
decisions, and other documents generated by this process will be
officially served through the electronic filing system absent an
exception granted by OPM.
The proposed Sec. 751.103(a), (b), and (c) establish the form,
content, and deadlines of an employee's initial appeal, the agency's
response, and the employee's reply. The proposed Sec. 751.103(d)
allows the employee, the employee's representative, and the agency to
review the appellate record upon request. It also provides that any
information provided by one party must be made available to the other
parties.
The proposed Sec. 751.104 prescribes the right for an employee to
choose a representative subject to certain limitations. This language
mirrors the limitations in 5 CFR 511.608; however it also restricts
employees from providing representation while in a duty status.
The proposed Sec. 751.105 establishes the procedures OPM will
follow in adjudicating appeals. Paragraph (a) establishes a conflict-
of-interest provision that precludes OPM personnel from adjudicating an
appeal if the employee was subject to a covered action or served as a
representative of an employee subject to a covered action during the
preceding two years. Paragraph (b) provides for an administrative law
judge to adjudicate an appeal filed by an OPM employee. In this
proposal, OPM is adopting an approach similar to that used by the MSPB
at 5 CFR 1201.13 to adjudicate appeals arising from its employees.
Paragraph (c) establishes a procedure for OPM to audit or investigate
an agency's probationary or trial period termination to ascertain
additional facts for use in adjudicating an appeal, similar to how OPM
conducts classification appeals at 5 CFR 511.609. Where OPM conducts an
audit or investigation to ascertain additional facts, it will provide
the parties with the results and provide a reasonable opportunity to
submit arguments or additional information in support of their
positions. Paragraph (d) establishes that OPM will provide written
notification of its decision. Paragraph (e) establishes OPM's authority
to award remedies under its authority under 5 U.S.C. 1103(a)(5) and
5596(b). Where OPM grants an employee's appeal, it will order relief
including correction of the personnel action and any back pay,
interest, and reasonable attorney fees consistent with 5 CFR part 550
subpart H. Paragraph (e) also establishes that if an agency timely
requests reconsideration of an initial decision or OPM reopens and
reconsiders an initial decision, the agency must continue to provide
the relief ordered unless OPM issued an order staying any such relief.
OPM will not order a stay, however, that would deprive pay and benefits
to a prevailing employee while the initial decision is pending
reconsideration.
The proposed Sec. 751.106 describes the process for sanctions and
protective orders. MSPB procedures, while providing for protective
orders, are inadequate to protect Federal employees from threats and
harassment. While MSPB permits a party to petition the board for a
protective order, it cannot, sua sponte, bind a party to a protective
order without a motion. Instead, MSPB relies primarily on mutual
consent of the parties, which allows for significant abuse by bad
actors. The failure to preemptively issue an order provides ample
opportunity to those who would channel unwarranted attention, harassing
messages, and threats to Federal employees, who neither sought nor
deserve public attention, merely for fulfilling their responsibilities.
This failure should be corrected to protect rank and file Federal
employees seeking to serve the public interest. However, unfortunately,
to date, MSPB has proven itself unwilling to take necessary steps to
protect Federal employees, who deserve to be fully protected from
harassment. As such, OPM believes it would be prudent and provide much
[[Page 61076]]
needed protection for Federal employees to adjudicate these appeals by
issuing cease-and-desist directives, with strict consequences for
failure to comply.
The proposed Sec. 751.107 establishes a procedure for employees or
their representatives and agencies to seek reconsideration of an
initial decision. Paragraph (a) establishes a timeline of 30 days from
the date the decision is issued for a party to seek reconsideration.
Paragraph (b) establishes the grounds upon which OPM may grant a
request for reconsideration. Paragraph (c) establishes the actions OPM
may take when an initial decision is reopened or reviewed. Paragraph
(d) prescribes what actions OPM may take upon reopening or
reconsidering an initial decision.
The proposed Sec. 751.108 establishes that the Director may act at
his or her discretion to reopen and reconsider any decision in which
OPM issued a final decision.
The proposed Sec. 751.109 describes the process by which OPM's
initial decision becomes its final decision. The section proposes that
initial decisions become final when neither party requests
reconsideration within 30 days. It further proposes to convert a
reconsidered opinion into a final decision 30 days following its
issuance if the Director does not intercede but, in such cases,
backdates the date on which the final decision becomes effective to the
date on which the reconsidered opinion is issued. In instances in which
the Director does intercede, this section proposes to define a final
decision as effective as of the date on which the Director issues his
or her decision.\64\ Finally, the section proposes to limit further
rights to appeal following a final agency decision, including judicial
review.
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\64\ This regulation is modeled after those of the Commission,
published in 1949. U.S. Senate Committee on Post Office and Civil
Service, supra note 15, at p. 68.
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OPM views this appellate process as necessary to ensure that the
Director is able to sufficiently supervise adjudicators and avoid any
serious constitutional concerns from having subordinate officials wield
executive authority. Under Article II, the Constitution vests the
executive power in the President who must rely upon subordinates to
exercise his authority. Adjudicators assigned to adjudicate appeals
under this proposed rule exert significant authority that must be
properly supervised by a principal officer appointed by the President
with Senate consent to avoid a constitutional problem. United States v.
Arthrex, Inc., 594 U.S. 1 (2021).
OPM is also considering whether to amend Rule 11 (5 CFR part 11) to
include certain provisions from E.O. 14284. Specifically, paragraphs
(b)-(d) of Section 5 set forth certain procedures for agencies to
follow as part of their certification process for continued employment
of employees serving probationary or trial periods. For example,
paragraph (b) of Section 5 requires agencies to meet with each employee
serving an initial probationary or trial period at least 60 days prior
to the end of their probationary or trial period. Although these
provisions are already in effect and controlling, these procedures
within E.O. 14284 are not currently reflected in Rule 11. OPM is
considering whether incorporating these provisions into the regulations
would provide administrative convenience for employees and human
resources practitioners. OPM welcomes comments on whether and how it
should modify Rule 11 to explicitly incorporate these provisions of
Section 5(b)-(d) of E.O. 14284.
Finally, OPM proposes to modify its regulations under parts 432 and
752 to conform to E.O. 14284. The proposed changes in Sec. 432.102
remove reference in paragraphs (f)(1) and (2) to a trial period that
employees in the competitive service may serve. Similarly, the proposed
changes to Sec. Sec. 752.201 and 752.401 remove references to trial
periods for employees in the competitive service. Under E.O. 14284 and
5 CFR 11.2 and 11.3, employees in the competitive service serve
probationary periods while employees in the excepted service serve
trial periods. OPM also proposes modifying paragraph (f)(3) and adding
a new (f)(4) to clarify that preference eligible and nonpreference
eligible employees serving a trial period that have not completed one
or two years of current continuous service, respectively, may not
appeal an action under this part. These changes are consistent with and
necessary to conform to E.O. 14284 and 5 CFR 11.5 that preclude
employees serving a trial period from appealing an action under part
432 or failure of an agency to certify their appointment advances the
public interest.
III. Regulatory Analysis
A. Statement of Need
OPM is issuing this proposed rule to issue regulations under
Section 11.6 of Civil Service Rule XI and 5 U.S.C. 1103. This proposed
rule follows the issuance of E.O. 14284 which rescinded the regulations
in subpart H of part 315 of this chapter, including the circumstances
and procedures for filing an appeal from termination during a
probationary period. Thus, the purpose of this rulemaking is to
prescribe the circumstances under and procedures by which employees
terminated from a probationary or trial period may appeal to OPM. OPM
believes this rule balances the needs of promoting greater
accountability of the Federal workforce while also providing an avenue
for employees to appeal terminations they believe are contrary to some
covered Merit System Principles, or when they believe an agency failed
to follow procedures for terminations based upon pre-appointment
reasons. The rule also proposes to streamline the adjudication of
appeals currently before the MSPB which provide for legal discovery and
a right to a hearing, which are neither necessary for reviewing these
types of appeals nor conducive to the efficient administration of the
civil service. This proposal would also give OPM jurisdiction over
appeals from supervisors and managers assigned to nonsupervisory and
nonmanagerial positions for failing their probationary period. This is
necessary to streamline the procedures of all appeals related to
probationary periods and promote consistency between how such
probationary periods are treated.
B. Regulatory Alternatives
An alternative to this rulemaking is a rule that would mirror the
appeal rights and procedures under subpart H of part 315 including
allowing employees to file appeals with the MSPB. Continuing to allow
employees to appeal to the MSPB would not be as efficient as OPM
adjudicating appeals. MSPB procedures unnecessarily add complexity to a
process designed for Federal agencies to evaluate whether it is in the
public's interest to retain employees newly hired into the Federal
service. When appealing to the MSPB, employees have a statutory right
to a hearing when the matter is within its jurisdiction.\65\ And before
reaching a hearing, MSPB regulations allow the parties to engage in
discovery.\66\ These procedures unnecessarily delay and increase costs
of the adjudication of appeals that could be more efficiently
accomplished by limiting the transactional costs of litigation and
adjudication. Further, OPM believes that the costs and resources
associated with MSPB appeals processes have been one factor that has
inhibited supervisors from fully
[[Page 61077]]
utilizing probationary periods.\67\ As discussed in more detail in
sections III.C., III.D., and III.E., OPM does not believe that
returning appeals of probationary actions to MSPB is the best
alternative for the Government or employees.
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\65\ 5 U.S.C. 7701(a).
\66\ 5 CFR 1201.71-1201.75.
\67\ See U.S. Government Accountability Office, ``Improved
Supervision and Better Use of Probationary Periods Are Needed to
Address Substandard Employee Performance,'' (2015), p. 7, available
at https://www.gao.gov/assets/gao-15-191.pdf.
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OPM also considered whether to include an agency's failure to
provide written notice required under 5 CFR 11.5(e) as a basis for
appeal. OPM concluded that allowing an appeal on this basis would be
unnecessary for two reasons. First, employees serving a probationary or
trial period understand that, as a condition of employment, their
employment will conclude before the end of their tour of duty on the
last day of their appointment unless the agency issues the
certification required under 5 CFR 11.5. Second, an agency's failure to
adhere to a purely administrative requirement would not affect the
outcome of the employee's separation.
Another alternative to this rulemaking is to not issue a rule that
provides covered employees with a right to appeal. However, employees
terminated during their probationary or trial periods would not be able
to seek relief for discrimination based on partisan political reasons
or marital status. Supervisors and managers reassigned to
nonsupervisory or nonmaterial positions would still be allowed to
appeal to the MSPB under subpart I of part 315, which OPM views as
suboptimal given the efficiency gains from OPM adjudicating these
appeals under its own authority.
We considered whether to include as a basis for appeal the
circumstances described in the proposed Sec. 751.101(d). We view an
agency's inaction or decision not to finalize an employee's appointment
beyond the probationary or trial period as the natural conclusion of
the appointment akin to the expiration of a term employee's
appointment.\68\ Under OPM regulations, the Board similarly views an
agency's inaction to renew or extend a term employee's appointment
beyond the initial term as not an appealable adverse action.\69\
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\68\ In the event an agency fails to make the required
certification due to administrative error, the agency head can
petition the Director of OPM to reinstate an employee. OPM
Memorandum to Heads and Acting Heads of Departments and Agencies,
``Initial Guidance on President Trump's Executive Order
Strengthening Probationary Periods in the Federal Service'' (Apr.
28, 2025).
\69\ 5 CFR 752.401(b)(11); Scott v. Dep't of the Air Force, 113
MSPR 434, ] 9 (2010).
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We also conclude that granting employees a right to appeal the OPM
Director's decision to deny an agency's petition to reinstate an
employee to the Federal service under 5 CFR 11.5(f) is inappropriate.
Consistent with our view that the employee's appointment naturally
comes to an end as described in 5 CFR 11.5(a), the agency and not the
employee retains the right to seek the OPM Director's approval to
reinstate the employee. It would be inconsistent with E.O. 14284 and 5
CFR 11.5 to establish a right to challenge the OPM Director's decision
to deny a petition from the agency given the nature of the employee's
appointment and the lack of standing of the employee.
C. Impact
The proposed rule promotes greater accountability of the Federal
workforce while delivering cost-savings to the American taxpayer.
Streamlining the appeals process by reducing unnecessary legal
processes to adjudicate a narrow set of appealable issues and locating
adjudicative responsibilities at OPM would produce a net savings in
terms of both costs and efficiency of government administration.
Although employees who might otherwise obtain adjudication of
collateral claims of discrimination would need to file complaints with
the EEOC, the adjudication of those claims at the EEOC may result in
better outcomes as the EEOC administers and oversees nearly all anti-
discrimination laws protecting Federal employees. Employees seeking
relief before the EEOC may also experience longer times to receive a
decision given the number of cases pending charges at the end of Fiscal
Year 2024.\70\ However, employees will gain the ability to bypass
delays in the processing of their complaints by filing a lawsuit in
Federal district court under certain circumstances.\71\
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\70\ Equal Employment Opportunity Commission, ``Fiscal Year 2024
Annual Performance Report,'' January 17, 2025, available at https://www.eeoc.gov/sites/default/files/2025-01/24-126_EEOC_2024_APR_508_1.16.25_508.pdf.
\71\ 29 CFR 1614.407.
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D. Costs
This proposed rule, once finalized and in effect, would affect how
Federal employees pursue appeals from terminations during their
probationary or trial periods and reassignments to nonsupervisory or
nonmanagerial positions. This proposal grants authority over
adjudication of these appeals to OPM. The proposed rule also removes
authority from the MSPB to adjudicate complaints of discrimination that
could attach to appeals from terminations during a probationary period.
The grant of adjudicative responsibility to OPM will likely result
in net cost savings for the Government for two reasons. First, the
proposed rule streamlines the adjudicative process by replacing
discovery with an as-needed investigation or audit conducted by OPM.
The parties will no longer have a right or ability to conduct discovery
which can result in extensive, needless costs, including time spent on
document production, depositions, and written discovery, each of which
involve extensive costs in time and resources for the Government. It
also eliminates an employee's right to a hearing in favor of decisions
based on the written record unless OPM determines that a hearing is
both necessary and will result in an efficient adjudication. Second,
the rule locates the adjudicative function at OPM, resulting in
significant cost savings based on a reduction in personnel salaries as
detailed below.\72\
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\72\ OPM used the most recently available data in the FedScope
employment data cube for September 2024 to estimate grade levels of
MSPB and EEOC personnel assigned to adjudicate appeals covered by
this proposed rule. The data is available at https://www.fedscope.opm.gov/.
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Based on the most recent publicly available annual report of the
MSPB, 622 employees filed appeals from their terminations during their
probationary or trial periods and reassignments to nonsupervisory or
nonmanagerial positions in Fiscal Year 2024.\73\ While OPM acknowledges
the significant number of appeals filed since agencies undertook
termination actions after the change in Administration on January 20,
2025, this period of time appears to be an anomaly and not a
sustainable trend. Employees filed 486, 424, and 461 ``Termination of
Probationer'' appeals from Fiscal Years 2021-2023,\74\ respectively.
Therefore, for the purposes of this analysis, OPM assumes an average of
457 appeals of probationer terminations per year.
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\73\ Merit Systems Protection Board, ``Annual Report for FY
2024,'' June 24, 2025, available at https://www.mspb.gov/about/annual_reports/MSPB_FY_2024_Annual_Report.pdf.
\74\ Merit Systems Protection Board annual reports are available
at https://www.mspb.gov/about/annual.htm.
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One-Time Costs
OPM estimates that this rulemaking will require individuals
employed by more than 80 Federal agencies including the MSPB and EEOC
to modify their regulations, policies, and procedures to implement this
rulemaking and train human resources (HR) practitioners, hiring
managers, attorneys, and
[[Page 61078]]
administrative judges. For the purpose of this cost analysis, the
assumed average salary rate of Federal employees performing this work
will be the rate in 2025 for GS-14, step 5, from the Washington, DC,
locality pay table ($161,486 annual locality rate and $77.38 hourly
locality rate). We assume that the total dollar value of labor, which
includes wages, benefits, and overhead, is equal to 200 percent of the
wage rate, resulting in an assumed labor cost of $154.76 per hour.
To comply with the regulatory changes, affected agencies would need
to review the final rule and update their regulations, policies, and
procedures. We estimate that, in the first year following publication
of the final rule, doing so will require an average of 100 hours of
work by employees with an average hourly cost of $154.76. This work
would result in estimated costs in that first year of implementation of
about $15,476 per agency, and about $1.2 million governmentwide.
Recurring Costs/Savings
OPM believes this rulemaking will not substantially increase the
cost to agencies in litigating terminations during employees'
probationary or trial periods and reassignments to nonsupervisory or
nonmanagerial positions. OPM first calculated the cost of shifting
complaints of discrimination raised in probationary appeals from the
MSPB to the EEOC. OPM assumes that an extremely conservative rate of
100% of appellants (457) also seek counseling with their agency's EEO
office. OPM expects that an existing EEO Specialists would process
employees' complaints of discrimination at the rate in 2025 for GS-12,
step 5, from the Washington, DC, locality pay table ($114,923 annual
locality rate and $55.07 hourly locality rate) with about 16 hours of
pre-complaint processing for each complaint.\75\ OPM assumes that the
total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $110.14 per hour. OPM estimates that the total
cost to the Federal Government for EEO pre-complaint is approximately
$805,000.
---------------------------------------------------------------------------
\75\ EEOC, Chapter 2, ``Management Directive for 29 CFR Part
1614 (EEO-MD-110),'' as revised, August 5, 20215, https://www.eeoc.gov/federal-sector/management-directive/management-directive-110.
---------------------------------------------------------------------------
After the EEO pre-complaint process, OPM estimates that 174
complaints will proceed to an investigation. OPM assumes that the
complaint processing will be performed by EEO Specialists paid at the
rate in 2025 for GS-12, step 5, from the Washington, DC, locality pay
table ($114,923 annual locality rate and $55.07 hourly locality rate),
to perform a total of 30 hours of investigative work for each
complaint. OPM also assumes that the total dollar value of labor, which
includes wages, benefits, and overhead, is equal to 200 percent of the
wage rate, resulting in an assumed labor cost of $110.14 per hour. OPM
estimates that the total cost to the Federal Government for EEO
investigations is approximately $575,000.
Following the investigative stage, OPM assumes that 76 complaints
will proceed to a final agency decision while 30 will be adjudicated by
an EEOC administrative judge. In drafting and issuing a final agency
decision, OPM estimates that agencies will employ one EEO Specialist
paid at the rate in 2025 for GS-12, step 5, from the Washington, DC,
locality pay table ($114,923 annual locality rate and $55.07 hourly
locality rate) to perform 12 hours of work to draft the decision; and
one EEO Director paid at the GS-15, step 5, from the Washington, DC,
locality pay table ($189,950 annual locality rate and $91.06 hourly
locality rate) to perform 4 hours of work to review and sign the
decision. OPM also assumes that the total dollar value of labor, which
includes wages, benefits, and overhead, is equal to 200 percent of the
wage rate, resulting in an assumed labor cost of $110.14 and $182.04
per hour, respectively. OPM estimates that the total cost to the
Federal Government to issue 76 final agency decisions is approximately
$156,000.
Assuming all probationer appeals result in a report of
discrimination and assuming probationer appellants proceed through the
EEOC process in rates similar to employees solely raising
discrimination claims, the number of complaints filed with the EEOC
would rise no greater than 6.5% based on the most recent publicly
available data.\76\ In adjudicating the 30 cases filed with the EEOC,
OPM assumes that an EEOC administrative judge paid at the rate in 2025
for GS-14, step 5, from the Washington, DC, locality pay table
($161,486 annual locality rate and $77.38 hourly locality rate) will
adjudicate complaints; the chief administrative judge paid at the GS-
15, step 5, from the Washington, DC, locality pay table ($189,950
annual locality rate and $91.06 hourly locality rate) will review the
administrative judge's decision; and a paralegal paid at the GS-11,
step 5, from the Washington, DC, locality pay table ($95,878 annual
locality rate and $45.94 hourly locality rate) will assist the
administrative judge during the adjudicative hearing process. OPM also
assumes that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $154.76, $182.04, and $91.88 per
hour, respectively. OPM estimates that each complaint will require 40,
8, and 4 hours, respectively, of an administrative judge, chief
administrative judge, and paralegal to adjudicate each complaint. OPM
also assumes each case will cost as much as $5,000 in miscellaneous
litigation costs associated with litigation (e.g., court reporter fees,
discovery) borne by the parties. Therefore, OPM estimates that the
total cost to adjudicate these 30 complaints is approximately $390,000.
---------------------------------------------------------------------------
\76\ EEOC, ``Fiscal Year 2021 Annual Report Complaints Tables,''
https://www.eeoc.gov/sites/default/files/2024-12/2021%20Annual%20Report%20Complaints%20Tables.zip.
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OPM also estimates that 12 of the 30 complaints adjudicated will be
appealed to the EEOC's Office of Federal Operations. OPM assumes that
an EEOC attorney paid at the rate in 2025 for GS-14, step 5, from the
Washington, DC, locality pay table ($161,486 annual locality rate and
$77.38 hourly locality rate) will draft and issue the opinion,
requiring 6 hours of work per appeal. OPM also assumes that an EEOC
paralegal paid at the GS-11, step 5, from the Washington, DC, locality
pay table ($95,878 annual locality rate and $45.94 hourly locality
rate) will assist the attorney, requiring 2 hours of work. OPM also
assumes that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $154.76 and $91.88 per hour,
respectively. Thus, OPM calculates that the total cost to adjudicate 12
appeals is approximately $13,350.
During the course of processing the 457 complaints, OPM assumes
agencies will require the use of agency attorneys to advise their EEO
offices as well as defend against the 30 complaints and 12 appeals. OPM
estimates that an attorney paid at the rate in 2025 for GS-13, step 5,
from the Washington, DC, locality pay table ($136,658 annual locality
rate and $65.48 hourly locality rate) will advise agency EEO offices on
average 8 hours per complaint. OPM also estimates that an attorney paid
at the rate in 2025 for GS-13, step 5, from the Washington, DC,
locality pay table, will defend the agency on average 60 hours per
complaint that proceeds to a hearing and 24 hours per appeal. OPM also
assumes that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed
[[Page 61079]]
labor cost of $130.96 per hour. Thus, OPM estimates that agencies'
costs for attorney services are approximately $780,000. The total
increased annual cost to the Federal Government from discrimination
claims being handled through the EEO process rather than as a mixed
case with the MSPB would be about $1.1 million. OPM expects that this
estimate exceeds the true cost as a result of conservative assumptions
(e.g., 100% of probationer appeals also make a claim of discrimination)
and likely duplication of costs (e.g., some appellants probably already
seek EEO counseling).
OPM also examined the costs of an adjudication at the MSPB as
compared to OPM. MSPB employs administrative judges at the GS-15 grade
level to adjudicate appeals. We assume that each probationary appeal
requires one administrative judge paid at the rate in 2025 for GS-15,
step 5, from the Washington, DC, locality pay table ($189,950 annual
locality rate and $91.02 hourly locality rate); and one paralegal at
the GS-11, step 5, from the Washington, DC, locality pay table ($95,878
annual locality rate and $45.94 hourly locality rate). We assume that
the total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $182.04 and $91.88 per hour for these respective
positions. We estimate that each initial appeal of a termination from a
probationary appeal requires 3 and 1 hour for an administrative judge
and paralegal to adjudicate an appeal, respectively. A Chief
Administrative Judge requires about an hour to review four cases. Based
on these assumptions, we estimate the cost for MSPB to adjudicate an
appeal at about $700 per appeal or $316,000 per year for 457 appeals,
the average number of appeals over the preceding three-year period.
In contrast, adjudicating appeals at OPM will require adjudicators
at the rate in 2025 for GS-13, step 5, from the Washington, DC,
locality pay table ($136,658 annual locality rate and $65.48 hourly
locality rate); paralegals at the GS-11, step 5, from the Washington,
DC, locality pay table ($95,878 annual locality rate and $45.94 hourly
locality rate); and supervisory adjudicators at the GS-14, step 5, from
the Washington, DC, locality pay table ($161,486 annual locality rate
and $77.38 hourly locality rate), to adjudicate 457 appeals each year.
We assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $130.96, $91.88, and $154.76 per
hour for the respective positions above. We estimate that each appeal
will require 30 hours of work performed by an adjudicator, 1 hour of
work by a paralegal, and 1 hours of work by a supervisory adjudicator.
On average, probationer appeals require very limited time commitments
to process because most cases are dismissed on jurisdictional grounds.
Nonetheless, for cases where there is jurisdiction, OPM expects that
OPM adjudication will require less time than an MSPB adjudication due
to several factors. OPM expects that cases will rarely require a
hearing and that most cases will be decided on the written record.
OPM's proposed process also does not provide for discovery, which is
often provided in cases before the MSPB. In addition to requiring less
time commitment, OPM expects to have employees at lower pay rates
adjudicate the cases with review by supervisors rather than using
higher-paid attorneys to adjudicate cases as the MSPB does. Based on
these assumptions, we estimate the cost to adjudicate an appeal at $640
and $290,000 per year to adjudicate 457 appeals. This results in a net,
recurring savings of about $25,000 from adjudicating appeals at OPM as
opposed to MSPB.
MSPB estimates that it receives petitions of review of
approximately 11% of decisions on appeal. Therefore, we assume that
employees in 46 of the 457 cases adjudicated will seek reconsideration
of an initial decision issued by OPM. With respect to the costs for the
MSPB to adjudicate petitions for review from initial appeals, we
estimate that each petition requires the Chairman and one Member of the
MSPB \77\ paid at the rate of Executive Schedule Level IV of $195,200
($93.53 hourly rate); an one attorney paid at the GS-15, step 5, from
the Washington, DC, locality pay table ($189,950 annual locality rate
and $91.06 hourly locality rate); and an attorney paid at the GS-13,
step 5, from the Washington, DC, locality pay table ($136,658 annual
locality rate and $65.48 hourly locality rate). We assume that the
total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $187.06, $182.04, and $130.96 for these
respective positions. We estimate that each petition requires 1, 2, and
6 hours, respectively, for the Board, GS-15 attorney, and GS-13
attorney to adjudicate. Based on these assumptions, we estimate the
cost for MSPB to adjudicate petitions for review to be $550 per
petition or about $25,000 per year for 46 petitions.
---------------------------------------------------------------------------
\77\ Based on the past decade and the current outlook, MSPB is
unlikely to have three concurrently sitting Board members for the
foreseeable future. Therefore, OPM has estimated the work of only
two Board members and staff.
---------------------------------------------------------------------------
Reconsideration under the proposed rule at OPM will require a GS-14
adjudications officer, not involved in the initial decision, at the
rate in 2025 for GS-14, step 5, from the Washington, DC, locality pay
table ($161,486 annual locality rate and $77.38 hourly locality rate);
the Associate Director of MSAC at the rate for a Senior Executive
Service member at $225,700 ($108.15 hourly rate). We assume that the
total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $154.76, and $216.30 per hour for the respective
positions. We estimate that each appeal on reconsideration will require
4 hours of work performed by the adjudications officer and 1 hour of
work by the Associate Director for MSAC. OPM estimates that a very
small number (e.g., 10) of cases will be reviewed by the Director of
OPM. Based on these assumptions, we estimate the cost of OPM
reconsidering an appeal at approximately $1,835 with $38,500 per year
for 46 reconsiderations. This results in a net, recurring cost of about
$13,500 for OPM reconsideration of appeals.
OPM also estimated costs to agencies to defend against probationary
appeals filed at the MSPB and OPM. OPM estimates that agencies employ
one attorney paid at the rate of a GS-14, step 5, from the Washington,
DC, locality pay table ($161,486 annual locality rate and $77.38 hourly
locality rate); one paralegal paid at the GS-11, step 5, from the
Washington, DC, locality pay table ($95,878 annual locality rate and
$45.94 hourly locality rate); and one supervisory attorney paid at the
rate of GS-15, step 5, from the Washington, DC, locality pay table
($189,950 annual locality rate and $91.06 hourly locality rate) to
defend against appeals and petitions for review filed at the MSPB. OPM
assumes that agencies will employ the same positions paid at the same
rates of pay for appeals filed at OPM under the proposed rule. OPM
further assumes that the total dollar value of labor, which includes
wages, benefits, and overhead, is equal to 200 percent of the wage
rate, resulting in an assumed labor cost of $154.76, $91.88, and
$182.04 per hour for the respective positions above. However, OPM
estimates that the amount of labor required to defend agencies will be
lower under the proposed rule. OPM
[[Page 61080]]
assumes each appeal before the MSPB requires 15, 4, and 1 hour of time
for an attorney, paralegal, and supervisory attorney, respectively. And
for PFRs, agencies require one attorney to work 10 hours. Under the
proposed rule, OPM estimates that agencies will require 10, 4, and 1
hour of time for an attorney, paralegal, and supervisory attorney,
respectively. And for reconsiderations of an OPM initial decision, OPM
estimates that the proposed rule would require 8 hours for one
attorney. Using the cost information above, OPM estimates that the
total cost to the Federal Government for litigation defense before the
MSPB is $1.4 million, and $1 million before OPM.
In summary, OPM calculates increased costs associated with moving
discrimination claims to the EEOC at approximately $2.6 million.
Estimated costs associated with MSPB continuing to adjudicate
probationer and trial period appeals at $1.759 million versus estimate
costs of adjudicating those cases at OPM at $1.373 million, yielding
savings of $386,000. These savings partially offset the cost of moving
discrimination claims to the EEOC. After considering the costs detailed
above, we estimate the first-year costs to be about $3.5 million
governmentwide with recurring annual costs to the Federal Government of
approximately $2.3 million.
E. Benefits
In addition to the direct cost savings this proposed rule would
generate, OPM expects that the faster adjudication of appeals will
result in additional benefits. First, receiving a timely decision on an
appeal will provide an individual with a clear determination of whether
the individual will be reinstated. Agencies will similarly benefit as
the streamlined appeal procedures proposed in this rule remove the
default requirement for a hearing before a MSPB administrative judge
and eliminate protracted, costly legal discovery between an appellant
and agency. Second, a timely decision on appeal will allow the
government to limit backpay and attorney's fees in instances where the
individual was removed in error.
Because appeals will be limited to discrimination based on partisan
political reasons or marital status, and failure to follow procedures
for terminations based upon pre-appointment reasons, OPM also
anticipates that the proposal will result in improved efficiency of the
service by freeing agencies' resources for facilitating an ongoing
assessment of whether new positions or new hires are meeting the needs
of the government. A study by the MSPB found that the success of
probationary periods' ability to find and assess talent to meet
agencies' missions and the Federal service is dependent upon
supervisors' ability to evaluate new talent and take appropriate action
to prevent less than successful candidates from becoming Federal
employees.\78\ By allowing supervisors and managers to spend more time
training, mentoring, and evaluating new employees, agencies should
achieve savings from better outcomes with recruiting and retaining
talent to the Federal service.
---------------------------------------------------------------------------
\78\ MSPB, ``The Probationary Period: A Critical Assessment
Opportunity,'' August 2005, available at https://www.mspb.gov/studies/studies/The_Probationary_Period_A_Critical_Assessment_Opportunity_224555.pdf.
---------------------------------------------------------------------------
IV. Procedural Issues and Regulatory Review
A. Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this rulemaking will not have a significant economic impact on a
substantial number of small entities because the rule involves
adjudicative authority of Federal agencies to adjudicate appeals filed
by current and former Federal employees. While small entities
representing current or former Federal employees will be impacted by
the change in venue for appeals and complaints of discrimination, the
procedures employed by the OPM and EEOC will not cause significant
economic impacts on these small entities.
B. Regulatory Review
OPM has examined the impact of this rulemaking as required by
Executive Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011),
which direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits. A regulatory impact
analysis must be prepared for major rules with effects of $100 million
or more in any one year. This rulemaking does not reach that threshold
but has otherwise been designated as a ``significant regulatory
action'' under section 3(f) of Executive Order 12866, as supplemented
by Executive Order 13563. This proposed rule is not expected to be an
Executive Order 14192 regulatory action.
C. Executive Order 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132 (Aug. 10, 1999), it is determined that this proposed rule
does not have sufficient federalism implications to warrant preparation
of a Federalism Assessment.
D. Executive Order 12988, Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988 (Feb. 7, 1996).
E. Unfunded Mandates Reform Act of 1995
This rulemaking will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
more than $100 million annually (adjusted annually for inflation with
the base year 1995). Thus, no written assessment of unfunded mandates
is required.
F. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act. OPM is
reviewing its existing System of Records Notices (SORNs) in light of
the changes proposed in this rulemaking. OPM will publish any proposed
changes to any relevant SORNs in the Federal Register.
The Director of OPM, Scott Kupor, reviewed and approved this
document and has authorized the undersigned to electronically sign and
submit this document to the Office of the Federal Register for
publication.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
List of Subjects
5 CFR Part 230
Civil defense, Government employees.
5 CFR Part 315 and 432
Government employees.
5 CFR Part 751 and 752
Administrative practice and procedure, Government employees.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR parts 230, 315, 432, 751, and 752 as follows:
[[Page 61081]]
PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT
0
1. The authority citation for part 230 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302. E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; E.O. 14284, 90 FR 17729. Sec. 230.402 also
issued under 5 U.S.C. 1104.
Subpart D--Agency Authority To Take Personnel Actions in a National
Emergency
0
2. Amend 230.402 by revising paragraph (f) to read as follows:
Sec. 230.402 Agency authority to make emergency-indefinite
appointments in a national emergency.
* * * * *
(f) Probationary Period.
(1) The first year of service of an emergency-indefinite employee
is a probationary period.
(2) The agency may terminate the appointment of an emergency-
indefinite employee at any time during the probationary period. The
employee is entitled to the procedures set forth in part 751 of this
chapter as appropriate.
* * * * *
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
3. The authority citation for part 315 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218, unless otherwise noted; E.O. 14284, 90 FR
17729. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651
and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104.
Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also
issued under E.O. 12034, 43 FR 1917, 3 CFR, 1978 Comp., p.111. Sec.
315.606 also issued under E.O. 11219, 30 FR 6381, 3 CFR, 1964-1965
Comp., p. 303. Sec. 315.607 also issued under 22 U.S.C. 2560. Sec.
315.608 also issued under E.O. 12721, 55 FR 31349, 3 CFR, 1990
Comp., p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(c). Sec.
315.611 also issued under 5 U.S.C. 3304(f). Sec. 315.612 also under
E.O. 13473, 73 FR 56703, 3 CFR, 2009 Comp., p. 241. Sec 315.613 also
issued under 5 U.S.C. 9602. Sec. 315.710 also issued under E.O.
12596, 52 FR 17537, 3 CFR, 1978 Comp., p. 264.
Subpart B--The Career-Conditional Employment System
0
4. Amend Sec. 315.201 by revising paragraph (a) to read as follows:
Sec. 315.201 Service requirement for career tenure.
(a) Service requirement. A person employed in the competitive
service for other than temporary, term, or indefinite employment is
appointed as a career or career-conditional employee subject to the
probationary period required by part 11 of this chapter. Except as
provided in paragraph (c) of this section, an employee must serve at
least 3 years of creditable service as defined in paragraph (b) of this
section to become a career employee.
Subpart I--Probation on Initial Appointment to a Supervisory or
Managerial Position
0
5. Amend Sec. 315.908 by revising paragraph (b) to read as follows:
Sec. 315.908 Appeals.
* * * * *
(b) An employee who alleges that an agency action under this
subpart was based on partisan political affiliation or marital status
may appeal to the Office of Personnel Management using the procedures
in 5 CFR part 751.
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
6. The authority citation for part 432 is revised to read:
Authority: 5 U.S.C. 4303, 4305. E.O. 14284, 90 FR 17729.
0
7. Amend Sec. 432.102 by:
0
a. Revising paragraphs (f)(1), (2), and (3);
0
b. Redesignating paragraphs (f)(4)-(13) as (f)(5)-(14); and
0
c. Adding a new paragraph (f)(4).
The revisions and addition read as follows:
Sec. 432.102 Coverage.
* * * * *
(f) Employees excluded. This part does not apply to:
(1) An employee in the competitive service who is serving a
probationary period under an initial appointment;
(2) An employee in the competitive service serving in an
appointment that requires no probationary period, who has not completed
1 year of current continuous employment in the same or similar
positions under other than a temporary appointment limited to 1 year or
less;
(3) A preference eligible employee in the excepted service who has
not completed 1 year of current continuous employment in the same or
similar positions;
(4) A nonpreference eligible employee in the excepted service who
has not completed 2 years of current continuous service in the same or
similar positions in an Executive agency under other than a temporary
appointment (see 5 CFR 213.104(a)) limited to 2 years or less;
0
8. Add part 751 to read as follows:
PART 751--PROBATIONARY AND TRIAL PERIOD APPEALS
Authority: 5 U.S.C. 1103, 1302, 3301, 3302, 3321, 5596. E.O.
14284, 90 FR 17729. 5 CFR 11.6.
Sec.
Sec. 751.101 Right to appeal.
Sec. 751.102 Procedures for submitting appeals.
Sec. 751.103 Form and content of probationary or trial period
appeal and agency response.
Sec. 751.104 Employee representatives.
Sec. 751.105 Adjudication of appeals.
Sec. 751.106 Sanctions and protective orders.
Sec. 751.107 Requests for reconsideration of an initial decision.
Sec. 751.108 Review by the OPM Director.
Sec. 751.109 Final decision.
Sec. 751.101 Right to appeal.
(a) Right of appeal.
(1) An employee may appeal to the Office of Personnel Management
(OPM):
(i) Termination during a probationary period required under 5 CFR
part 11 or other authority administered by the Office, and
(ii) Assignment to a nonsupervisory or nonmanagerial position for
failure to complete a supervisory or managerial probationary period
required under subpart I of part 315 of this chapter.
(2) An individual serving a probationary period does not have a
right to appeal their termination under this part if the individual has
completed one year of current continuous service under other than a
temporary appointment limited to 1 year or less. Such individual may
have a right to appeal under the provisions of 5 CFR 432.106 or
752.405, as appropriate, provided that such appeal is not excluded by
the provisions of Sec. 432.102(b), (d), and (f) and 752.401(b) and (d)
of this chapter.
(b) Burden of proof. The employee (i.e., appellant) bears the
burden to demonstrate, by a preponderance of the evidence:
(1) The timeliness and form of the written appeal,
(2) That OPM possesses jurisdiction over the appeal, and
(3) The agency's action was discriminatory based on partisan
political reasons or marital status or failed to follow the procedures
for terminating the employee for reasons based in whole or in part on
conditions arising before the employee's appointment.
(c) Appealable issues. (1) Discrimination. An employee may appeal
one of the following actions that he or she alleges was based on
partisan political reasons or marital status:
[[Page 61082]]
(i) Termination not required by statute,
(ii) Assignment to a nonsupervisory or nonmanagerial position under
315.907 of this chapter,
(iii) An agency's decision not to certify the continuation of the
appointment of an employee serving a probationary or trial period, or
(iv) An agency's failure to certify and finalize the appointment of
an employee serving a probationary or trial period.
(2) Improper procedure. An employee whose termination is based in
whole or part on conditions arising before his or her appointment may
appeal to OPM challenging that the agency failed to provide:
(i) advance written notice stating the reasons, specifically and in
detail, for the proposed action;
(ii) a reasonable time for filing a written answer to the notice of
proposed adverse action and for furnishing affidavits in support of his
or her answer. If the employee answers, the agency shall consider the
answer in reaching its decision; and
(iii) a written decision at the earliest practicable date delivered
at or before the effective date of the action. The decision shall
inform the employee of the reasons for the action, the right to appeal
to OPM, the need to include documented supporting facts, and time
limits within which the appeal must be submitted under this Section.
(d) Nonappealable issues. An employee may not appeal under this
part any other issue not specified in paragraphs (c) of this section.
(e) Exclusive appeal procedure. The procedures in this Part are the
sole and exclusive means of appealing terminations during probationary
or trial periods but does not preclude an employee from filing a
complaint, appeal, or other matter within the jurisdiction of the Equal
Employment Opportunity Commission, an Inspector General, Merit Systems
Protection Board, or Office of Special Counsel. A party cannot obtain
judicial review of a decision under this part.
(f) Definition of employee. For purposes of this part, an employee
means an individual who was appointed:
(1) to the competitive service as described in 5 CFR 11.2 who has
not completed one year of current continuous service under other than a
temporary appointment limited to one year or less;
(2) to the competitive service and serving a probationary period on
an initial appointment to a supervisory or managerial position under
subpart I of part 315 of this chapter;
(3) to the competitive service under an emergency-indefinite
appointment in a national emergency serving a probationary period under
subpart D of part 230 of this chapter and who is in the first year of
service; or
(4) to the excepted service before the end of their first year on
an initial appointment under part 307 of this chapter. Employees
serving in an appointment in the excepted service outside of part 307
are not covered under this section and, therefore, may not appeal a
termination during their trial period unless otherwise entitled by
statute.
Sec. 751.102 Procedures for submitting appeals.
(a) Filing an appeal. An employee, or his or her authorized
representative, seeking to file an appeal or reconsideration under this
part must utilize the electronic filing system available at {URL
TBD{time} . Absent an exception, OPM will not accept pleadings,
evidence, or other documents via electronic mail or postal mail.
(b) Time limits. An employee may file an appeal within 30 calendar
days from the effective date of the action. An appeal is deemed timely
when it is electronically filed by 11:59 p.m. Eastern Standard Time on
the 30th calendar day after the effective date of the action.
(1) In computing the number of days allowed for filing an appeal,
the first day counted is the day after the effective date of an Agency
action. If the date that ordinarily would be the last day for filing
falls on a Saturday, Sunday, or Federal holiday, the filing period will
include the first workday after that date.
(2) If an employee does not file an appeal within the time set by
this section, the appeal will be dismissed as untimely filed unless the
employee demonstrates good cause for an untimely appeal. The
determination of good cause will be in the sole and exclusive
discretion of OPM.
(c) E-filing procedures.
(1) All parties and their representatives to an appeal or
reconsideration must register as instructed by OPM on its probationary
appeals website using a unique email address.
(2) Registration as an e-filer constitutes consent to accept
electronic service of pleadings, evidence, notices, orders, and other
documents filed by other e-filers or issued by OPM. No party may
electronically file any document with OPM or access an appeal or
reconsideration of an appeal unless registered as an e-filer.
(3) All notices, orders, decisions, and other documents issued by
OPM, as well as all documents filed by parties, will be made available
for viewing and downloading at OPM's electronic filing system. Access
to documents is limited to the parties and their representatives who
are registered e-filers in the cases in which they were filed.
(4) All parties and their representatives must follow the
instructions on OPM's website for properly filing all pleadings,
evidence, and other documents. OPM may strike a document where an e-
filer repeatedly fails to follow these instructions subsequent to a
show cause order.
(5) Each e-filer must promptly update their profile in OPM's
electronic filing system and notify OPM and other parties of any change
in their address, telephone number, or email address by filing a
pleading in each pending case with which they are associated. E-filers
are responsible for monitoring case activity regularly in OPM's
electronic filing system to ensure that they have received all case-
related documents.
(6) A party or representative may withdraw their registration as an
e-filer pursuant to the requirements posted on OPM's website.
Withdrawing registration in OPM's electronic filing system means that,
effective upon OPM's processing of a proper withdrawal, pleadings,
evidence, orders, and other documents filed by a party or party's
representative and OPM will no longer be served on that person
electronically and that person will no longer have electronic access to
their case records through OPM's electronic filing system. OPM may
still process an appeal or request for reconsideration after a party
withdraws as an e-filer. Withdrawal as a party or party's
representative will not be considered good cause for staying a case. As
the e-file system is the only accepted method for filing an appeal, a
withdrawal of registration as an e-filer may preclude future re-
registering as an e-filer.
(7) OPM, in its sole and exclusive discretion, may exempt a party
or representative from registering as an e-filer for good cause. A
party or representative must promptly contact OPM as instructed on
OPM's website to request an exemption from the e-filing requirements in
this Part. OPM will not find good cause for failing to timely file an
appeal or seek reconsideration if the party or representative fails to
contact OPM to request an exemption before any deadline to appeal or
seek reconsideration.
(8) Documents filed in OPM's electronic filing system are deemed
[[Page 61083]]
received on the date of the electronic submission.
Sec. 751.103 Form and content of probationary or trial period appeal
and agency response.
(a) Initial appeal. An employee's appeal shall be in writing and
shall state the basis of the employee's appeal; the name, address, and
email address or phone number of the appellant and appellant's
representative, if any; and any documentation supporting the
appellant's appeal.
(b) Agency response. The agency response to an appeal must be filed
within 30 calendar days of the initial appeal; contain the name of the
appellant and of the agency whose action the appellant is appealing; a
statement identifying the agency action taken against the appellant and
stating the reasons for taking the action; all documents contained in
the agency record of the action; designation of and signature by the
authorized agency representative; and any other documents or responses
requested by the Office. The agency's 30 calendar days to respond
begins upon service of the appeal.
(c) Reply. An employee may file a reply to an agency response to an
initial appeal within 15 calendar days of the agency response. The
reply may only address the factual and legal issues raised by the
agency in response to the initial appeal. The reply may not raise new
allegations of error.
(d) Inspection of OPM's appellate record. The employee, an
employee's representative, and the agency will be permitted to inspect
OPM's appellate record on request.
(e) Service of documents. The employee, employee's representative,
and agency will serve on each other copies of any and all information
submitted to OPM with respect to an appeal. Such information must be
served on all other parties at the same time the information is
submitted to OPM and must be accompanied by a certificate of service
stating how and when service was made.
(f) Untimely filings. Untimely filings may be accepted upon a
party's showing of good cause at the sole and exclusive discretion of
OPM.
Sec. 751.104 Employee representatives.
An appellant may select a representative of his or her choice to
assist in the preparation and presentation of an appeal, provided that
the appellant submits his or her designation of representative in
writing related to the specific appeal. If the selected representative
is a Federal employee, the representative may not perform such
representational functions while in a duty status (including while on
official time under 5 U.S.C. 7131), nor may the representative claim
agency reimbursement for any expenses incurred while performing such
representational function. OPM or the responsible agency may, in its
sole and exclusive discretion, disallow an appellant's choice of
representative when the representative is an employee of the
responsible agency or OPM and his or her activities as a representative
would cause a conflict of interest or position; that employee cannot be
released from his or her official duties because of the priority needs
of the Government; or that employee's release would give rise to
unreasonable costs to the Government.
Sec. 751.105 Adjudication of appeals.
(a) Appeals by non-OPM employees. OPM will assign personnel to
adjudicate an appeal under this subpart by an employee of an agency
other than OPM. However, no employee may be assigned to adjudicate an
appeal if the employee has a relationship with the appellant or, during
the preceding two years, that person was an employee of the agency that
is party to the action to be assigned. When necessary, OPM may appoint
an administrative law judge to preside over the adjudication of an
appeal.
(b) Appeals by OPM employees. OPM will assign an administrative law
judge to adjudicate an appeal under this subpart by an OPM employee. To
insulate the adjudication of its own employees' appeals from agency
involvement, OPM will not disturb initial decisions in those cases
unless a party shows that there has been harmful procedural
irregularity in the proceedings before the administrative law judge or
a clear error of law. For these purposes, the term harmful procedural
irregularity means an irregularity in the application of procedures was
likely to have caused the administrative law judge to reach a
conclusion different from the one it would have reached in the absence
or cure of the irregularity.
(c) Ascertainment of facts. OPM may audit or investigate an
agency's termination action in the course of adjudicating an appeal if
it determines, in its sole and exclusive discretion, that such an audit
or investigation is in the interest of justice . An individual serving
as a representative of either party may not participate in an audit or
investigation unless OPM specifically requests them to do so. The
review of an agency action must be based solely on the developed
written record unless OPM determines that a hearing is necessary and
efficient to resolve an appeal. For purposes of this section, the terms
necessary and efficient means circumstances in which the written record
is insufficiently developed to make a determination regarding one or
more facts material to the outcome of the appeal, or where there is a
disputed issue of witness credibility that is material to the outcome
of the appeal. Where an investigation or audit is conducted, OPM will:
(1) Inform the employee, the employee's representative, and the
agency of an investigation or audit, and
(2) Provide the employee, the employee's representative, and the
agency with the results of an investigation or audit, and a reasonable
opportunity to submit arguments or additional information to support
their positions.
(d) Initial decision. OPM will notify the employee, employee's
representative, and agency in writing of its decision.
(e) Remedies.
(1) If the employee is the prevailing party, OPM will order relief
including correction of the personnel action and any back pay,
interest, and reasonable attorney fees consistent with subpart H of
part 550 of this chapter. The employee as a prevailing party is not
entitled to compensatory damages or other relief not authorized under 5
U.S.C. 5596(b).
(2) If the agency timely requests reconsideration of an initial
decision or the OPM reopens and reconsiders an initial decision, the
agency must continue to provide the relief ordered unless OPM issues an
order staying any such relief. No such stay may be ordered that would
deprive pay and benefits to the employee while the initial decision is
pending reconsideration.
Sec. 751.106 Sanctions and protective orders.
(a) Cease-and desist directive. OPM may issue a directive to a
party to prevent or to cease-and-desist harassing communications (or
communications which could reasonably be foreseen to lead to
harassment) with or about any individual, or to prohibit a party from
using any information related to the appeal for any purpose whatsoever
unrelated to the adjudication of the appeal. OPM may do this sua
sponte, or at the request of a party, preemptively or at any juncture
in the appeal process. A party requesting OPM to issue a protective
order or cease-and-desist should file such request using the e-filing
procedures proscribed at Sec. 751.102(c), and must include statement
of reasons justifying the
[[Page 61084]]
request, together with any relevant documentary evidence.
(b) Failure to comply with an OPM directive. When a party to an
appeal fails to comply with an order issued under subsection (a), OPM
may, except when prohibited by law:
(1) Draw all inferences in opposition to the noncompliant party
with regard to the appeal in question;
(2) Prohibit the noncompliant party from introducing evidence, or
additional evidence, concerning the appeal, or otherwise relying on the
record; or
(3) Eliminate from consideration any appropriate part of the
filings or other submissions of the noncompliant party.
Sec. 751.107 Requests for reconsideration of an initial decision.
(a) Upon a request from either party to the dispute or upon its own
initiative, OPM may, in its sole and exclusive discretion, reopen and
reconsider an initial decision issued under this subpart. An employee,
the employee's representative, or agency may request reconsideration of
an initial decision within 30 calendar days from issuance of the
decision. The request for reconsideration must be filed as directed in
the initial decision.
(b) Grounds for which OPM may grant a request for reconsideration
are:
(1) The initial decision contains erroneous findings of material
fact sufficient to warrant an outcome different from that of the
initial decision;
(2) The initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the
facts of the case. The party must explain how the error affected the
outcome of the case;
(3) New and material evidence or legal argument is available that,
despite the party's due diligence, was not available when the record
closed. To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed; or
(4) OPM finds good cause to reconsider an appeal.
(c) In any case that is reopened or reviewed, OPM may:
(1) Issue a reopened and reconsidered decision (``R&R decision'')
that affirms, reverses, modifies, vacates, or otherwise decides the
case, in whole or in part;
(2) Require the parties to submit argument and evidence;
(3) Take any other action necessary for final disposition of the
case; and
(4) Issue an order with a date for compliance with the R&R
decision.
(d) There is no further right of administrative appeal from the R&R
decision.
Sec. 751.108 Review by the OPM Director.
The Director may, at his or her discretion, sua sponte, reopen and
reconsider any appeal in which OPM has issued a decision that has not
yet become final.
Sec. 751.109 Final decision.
(a) The initial decision becomes OPM's final decision if a party
does not request OPM to reopen or reconsider the initial decision, or
OPM does not do so on its own initiative, within 30 calendar days from
the date of the initial decision.
(b) A R&R decision pursuant to Sec. 751.107 becomes OPM's final
decision if the OPM Director does not reopen the decision pursuant to
Sec. 751.108 within 30 calendar days from the date on which the R&R
decision was issued.
(c) A decision by the Director pursuant to Sec. 751.108 is the
final decision of OPM and effective upon issuance.
(d) There is no further right of appeal of a final decision of OPM.
(e) OPM shall maintain a publicly accessible website containing all
final decisions issued on this part that address a party's claim on the
merits. Any final decision not made publicly available shall be made
available upon request by a concerned party. For purposes of this
subsection, a concerned party means the Federal employee or former
Federal employee involved in a proceeding under this subpart, his or
her representative selected pursuant to Sec. 751.104, or a
representative of a Federal agency or office.
PART 752--ADVERSE ACTIONS
0
9. The authority citation for part 752 is revised to read as follows:
Authority: 5 U.S.C. 6329b, 7504, 7514, 7515, and 7543; 38 U.S.C.
7403. Sec. 512, Pub. L. 114-328, 130 Stat. 2112; E.O. 10577, 19 FR
7521, 3 CFR, 1954-1958 Comp., p. 218; E.O. 14284, 90 FR 17729.
Subpart B--Regulatory Requirements for Suspension for 14 Days or
Less
0
10. Amend Sec. 752.201 by revising paragraphs (b)(1) and (2) to read
as follows:
* * * * *
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completed a
probationary period, or who has completed 1 year of current continuous
employment in the same or similar positions under other than a
temporary appointment limited to 1 year or less;
(2) An employee in the competitive service serving in an
appointment which requires no probationary period, and who has
completed 1 year of current continuous employment in the same or
similar positions under other than a temporary appointment limited to 1
year or less;
* * * * *
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
0
11. Amend Sec. 752.401 by revising paragraphs (c)(1), (c)(2)(i),
(d)(10), and (d)(12) to read as follows:
Sec. 752.401 Coverage.
* * * * *
(c) * * *
(1) A career or career conditional employee in the competitive
service who is not serving a probationary period;
(2) * * *
(i) Who is not serving a probationary period under an initial
appointment; or
* * * * *
(d) * * *
(10) A nonpreference eligible employee serving a trial period under
an initial appointment in the excepted service pending conversion to
the competitive service, unless he or she meets the requirements of
paragraph (c)(5) of this section;
(11) * * *
(12) An employee in the competitive service serving a probationary
period, unless he or she meets the requirements of paragraph (c)(2) of
this section.
[FR Doc. 2025-23974 Filed 12-29-25; 8:45 am]
BILLING CODE 6325-39-P