[Federal Register Volume 91, Number 147 (Monday, August 3, 2026)]
[Rules and Regulations]
[Pages 49072-49115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15654]
[[Page 49071]]
Vol. 91
Monday,
No. 147
August 3, 2026
Part IV
Office of Personnel Management
-----------------------------------------------------------------------
5 CFR Parts 11, 230, 315, et al.
Streamlining Probationary and Trial Period Appeals; Final Rule
Federal Register / Vol. 91 , No. 147 / Monday, August 3, 2026 / Rules
and Regulations
[[Page 49072]]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 11, 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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing a final
rule to change the circumstances and procedures for adjudicating
appeals from employees terminated during their probationary and trial
periods and supervisors and managers who fail to complete their
probationary periods. Executive order, ``Strengthening Probationary
Periods in the Federal Service,'' rendered the prior procedures for
appealing such actions to the Merit Systems Protection Board (MSPB)
inoperative. This final rule establishes a new, limited appeals process
adjudicated by OPM. The final rule also makes conforming amendments.
DATES: Effective September 2, 2026. Covered actions (i.e.,
terminations, assignments, noncertifications, or failures to certify/
finalize) effected before the effective date of this rule are not
governed by this final rule.
FOR FURTHER INFORMATION CONTACT: Aaron Gottesman, Senior Advisor to the
Director, by email at [email protected] or by phone at
(202) 606-2930.
SUPPLEMENTARY INFORMATION: OPM is issuing this final 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.\1\ Under Executive Order (E.O.)
14284, the President rendered the probationary period appeal procedures
in 5 CFR part 315, subpart H, ``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. Since that rescission, no administrative
appeals process has existed for terminations during probationary or
trial periods. E.O. 14284 delegated authority to OPM to prescribe
circumstances and procedures by regulation by which employees
terminated during their probationary or trial periods may appeal such
termination.
---------------------------------------------------------------------------
\1\ In this preamble, OPM sometimes uses the terms
``probationary,'' ``probationer,'' or ``probationary employee'' as
shorthand to refer collectively to employees serving probationary
periods or trial periods covered by this final rule. This shorthand
is not intended to expand the scope of the rule or to eliminate
distinctions among competitive service probationary periods, trial
periods covered by 5 CFR part 307, supervisory or managerial
probationary periods, or other appointment-specific requirements. A
relatively small number of employees serving trial periods under 5
CFR part 307 are covered by this final rule and have the limited
appeal rights granted herein. However, excepted service employees
serving trial periods outside 5 CFR part 307 do not have appeal
rights under this rule arising solely from termination during such
trial periods, unless another statute, regulation, or other
independent legal authority provides such rights.
---------------------------------------------------------------------------
This final rule establishes OPM procedures for appeals formerly
addressed by subpart H of part 315 and for supervisory or managerial
probationary period appeals under Sec. 315.908. The rule grants
authority to OPM to adjudicate appeals to include appeals filed by
employees terminated during their probationary periods (or during their
trial periods, for employees covered under 5 CFR part 307), or whose
appointments were not finalized during such 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, 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
Equal Employment Opportunity Commission (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. This final rule also provides a
procedure for an appellant to seek reconsideration of the decision.
This rule will not apply to any termination effected prior to the
effective date of the rule.
I. Digest of Public Comments
In response to the proposed rule, OPM received 632 comments during
the 30-day public comment period from a variety of individuals
(including current and former civil servants, scientists, and members
of Congress) and organizations, such as those representing science and
technology, national and local unions, and Federal agencies.\2\ Of the
632 comments received, 618 were posted, and 2 were not posted because
they contained threats to the President and members of the
Administration or contained sensitive personally identifiable
information from commenters. The remaining 12 comments are attributed
to individual commenters who indicated on their comment submission that
their comment represented a specific number of submissions. At the
conclusion of the public comment period, OPM reviewed and analyzed the
comments. In general, the comments ranged from ardent support of the
proposed regulation to categorical rejection of it. Some of the
comments supported the proposed regulation or were neutral or mixed,
while many opposed it.
---------------------------------------------------------------------------
\2\ Comments cited are available in the docket for this
rulemaking and can be accessed at https://www.regulations.gov/comment/OPM-2025-0013-nnnn, where ``nnnn'' is the comment number.
---------------------------------------------------------------------------
OPM found many of the comments helpful, and it has made several
adjustments to the proposed rule in response to comments, as explained
below. Among other changes, the final rule adds more detailed
procedures for agency certification at the end of the probationary or
trial period, specifies the minimum contents of the agency record,
allows employees to raise new allegations in reply when they are based
on information first disclosed by the agency or when good cause exists,
and strengthens safeguards insulating OPM adjudicators from officials
involved in the challenged action. The final rule also clarifies that
OPM's audit and investigation authority is directed to material issues
that cannot be resolved on the existing record, and it revises the
protective-order provision to ensure that any order is no broader than
reasonably necessary and does not restrict lawful protected
communications.
The comments focused on probationers potentially losing rights
under the new OPM appeals process as compared with the former MSPB
process that E.O. 14284 rescinded, as well as the requirement that
discrimination claims within the jurisdiction of the EEOC be filed with
the EEOC. Commenters who supported the proposed rule noted that
probationers' rights were already limited prior to the proposal, so
providing a complicated and burdensome appeal process under MSPB
jurisdiction is not practical nor does it support managers and
supervisors removing probationers for inefficient service to the
public.
In the next section, we address the background for these regulatory
[[Page 49073]]
amendments and related comments. In subsequent sections, we respond to
the significant groups of comments, describe the specific amendments,
provide a regulatory analysis, and provide the amended regulatory text.
Note that OPM received several comments that are not addressed below
because they were beyond the scope of the proposed regulatory changes
or were vague or incomplete.
II. Background, Legal Authority, and Need for the Rule 3
---------------------------------------------------------------------------
\3\ Commenter 0348 notes that much of the ``Background'' section
of the proposed rule was identical or nearly so to an Office of
Special Counsel brief filed with the MSPB. OPM agrees that a
citation should be provided and does so now. See Brief for the U.S.
Office of Special Counsel as Amicus Curiae, Commerce v. U.S. Office
of Pers. Mgmt., CB-1205-25-0021-U-1 (Merit Sys. Prot. Bd. filed May
14, 2025), available at https://www.osc.gov/~assets/docs/osc-amicus-
brief-cb-1205-25-0021-u-1-et-al_.pdf.
---------------------------------------------------------------------------
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 probation was ``another test under the Merit
System'' which ``must be considered before we pass final judgment on
the examinations, of which they are an essential part.'' If at the end
of the probationary period ``the appointing officer is not . . .
willing to make an unconditional appointment,'' the probationer would
not remain in the service.\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.''
---------------------------------------------------------------------------
\4\ Pendleton Civil Service Act, ch. 27, sec. 2, 22 Stat. 403,
404 (1883), available at https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/22/STATUTE-22-Pg403a.pdf.
\5\ U.S. Civil Service Commission, First Annual Report of the
United States Civil Service Commission to the President 29 (1884),
available at https://babel.hathitrust.org/cgi/pt?id=nnc1.cu09006737&seq=9.
\6\ U.S. Civil Service Commission, Third Annual Report of the
United States Civil Service Commission to the President 36 (1886),
available at https://babel.hathitrust.org/cgi/pt?id=njp.32101073361022&seq=40.
---------------------------------------------------------------------------
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\ With the enactment of the
Lloyd-La Follette Act of 1912, Congress created the first legislative
codification of protection against removal for civil servants. In doing
so, Congress did not create new protections out of whole cloth; it
largely codified the removal protections that had already developed as
a matter of Executive practice under President McKinley's 1897
executive order and its successors. 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.
---------------------------------------------------------------------------
\7\ Ruggles v. United States, 45 Ct. Cl. 86 (1910).
\8\ Lloyd-La Follette Act, Act of Aug. 24, 1912, ch. 389, sec.
6, 37 Stat. 555, 555, amended by Act of June 19, 1948, ch. 502, sec.
1, 62 Stat. 354, 354 (formerly codified at 5 U.S.C. 652(a)).
\9\ Id.
---------------------------------------------------------------------------
After the passage of the Lloyd-La Follette Act and the court's
decision in Ruggles, the CSC 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\
---------------------------------------------------------------------------
\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 96.
\12\ Id. at 112.
---------------------------------------------------------------------------
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.\14\
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.
---------------------------------------------------------------------------
\13\ See, e.g., U.S. Civil Service Commission, 30th Annual
Report of the United States Civil Service Commission for the Fiscal
Year Ended June 30, 1913 91 (1914), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152041&seq=97; U.S. Civil
Service Commission, 31st Annual Report of the United States Civil
Service Commission for the Fiscal Year Ended June 30, 1914 79, 95
(1915), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924054241355&seq=223; U.S. Civil Service Commission,
32nd Annual Report of the United States Civil Service Commission for
the Fiscal Year Ended June 30, 1915 72, 89 (1915), available at
https://babel.hathitrust.org/cgi/pt?id=coo.31924103152066&seq=9;
U.S. Civil Service Commission, 33rd Annual Report of the United
States Civil Service Commission for the Fiscal Year Ended June 30,
1916 48, 66 (1916), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152074&seq=112; U.S. Civil Service Commission,
38th Annual Report of the United States Civil Service Commission for
the Fiscal Year Ended June 30, 1921 52, 75 (1921), available at
https://babel.hathitrust.org/cgi/pt?id=coo.31924103152124&seq=8.
\14\ U.S. Civil Service Commission, 39th Annual Report of the
United States Civil Service Commission for the Fiscal Year Ended
June 30, 1922 xxi (1922), 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.'').
---------------------------------------------------------------------------
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.\15\
President John F. Kennedy later expanded these protections beyond
preference eligibles. As the CSC 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.'' \16\
However, nothing in these E.O.s or implementation by the CSC attempted
to expand application of those protections to probationers.
---------------------------------------------------------------------------
\15\ Veterans' Preference Act of 1944, Public Law 78-359, sec.
14, 58 Stat. 387, 390 (codified as amended in scattered sections of
5 U.S.C.), available at https://tile.loc.gov/storage-services/service/ll/uscode/uscode1940-00900/uscode1940-009005017/uscode1940-009005017.pdf.
\16\ U.S. Civil Service Commission, 79th Annual Report of the
United States Civil Service Commission for the Fiscal Year Ended
June 30, 1962 15 (1962), available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910338&seq=237&q1.
---------------------------------------------------------------------------
For a brief period of time starting in 1958, the CSC instituted a
rule granting broader appeal rights to probationary
[[Page 49074]]
employees.\17\ But in 1962, the Commission revoked these regulations.
27 FR 4755, 4759 (May 19, 1962). 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. 28 FR 9973, 10052 (Sept. 14, 1963).
---------------------------------------------------------------------------
\17\ U.S. Civil Service Commission, 75th Annual Report of the
United States Civil Service Commission for the Fiscal Year Ended
June 30, 1958 4 (1958), 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/.
---------------------------------------------------------------------------
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 establishing the conditions
in which an appointment in the competitive service becomes final. 5
U.S.C. 3321(a). 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.'' S. Rep. No. 95-969, 95th Cong., 2d Sess. 45
(1978).
Courts emphasized this language in holding that Congress
purposefully denied probationary employees statutory appeal rights.
See, e.g., United States 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). As the United States Court of Appeals for the District of
Columbia Circuit 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.'' 709 F.2d 724, 728 (D.C. Cir. 1983).
Similarly, courts elsewhere recognized Congress' intentional limitation
on protections for probationary employees. See, e.g., Nat'l Treasury
Emps. Union v. FLRA, 737 F.3d 273, 276 (4th Cir. 2013); Yates v. Dep't
of the Air Force, 115 F. App'x 57, 59 (Fed. Cir. 2004); Jones v. United
States DOJ, 111 F. Supp. 3d 25, 30 n.5 (D.D.C. 2015).
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.\18\ 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.'' \19\ The MSPB identified that the
failure of agencies 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.'' \20\ 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.'' \21\
---------------------------------------------------------------------------
\18\ See, generally, Merit Systems Protection Board, The
Probationary Period: A Critical Assessment Opportunity, Report to
the President and the Congress of the United States (Aug. 2005),
available at https://www.mspb.gov/studies/studies/The_Probationary_Period_A_Critical_Assessment_Opportunity_(2005)_2245
55.pdf.
\19\ Id. at 33.
\20\ Id.
\21\ Merit Systems Protection Board, Remedying Unacceptable
Employee Performance in the Federal Civil Service, Research Brief 4
(June 18, 2019), available at https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.
---------------------------------------------------------------------------
In 2015, the Government Accountability Office (GAO) issued a report
regarding Federal workforce performance.\22\ GAO interviewed several
chief human capital officers in Federal agencies and found that
``[a]gencies may not be using the supervisory probationary period as
intended.'' \23\ The GAO found that ``supervisors are often not making
performance-related decisions about an individual's future likelihood
of success with the agency during the probationary period.'' \24\ This
inefficiency 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.'' \25\ The GAO concluded
that the probationary period needed to be ``more effectively used by
agencies'' and that ``improving how the probationary period is used
could help agencies more effectively deal with poor performers.'' \26\
---------------------------------------------------------------------------
\22\ Government Accountability Office, Federal Workforce:
Improved Supervision and Better Use of Probationary Periods Are
Needed to Address Substandard Employee Performance, GAO-15-191 (Feb.
2015), available at https://www.gao.gov/assets/gao-15-191.pdf.
\23\ Id. at 9.
\24\ Id. at 11.
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
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[.]'' \27\ The next highest percentage of
respondents--21 percent--answered ``Do Not Know[.]'' \28\ Only 47
percent agreed that ``[i]n my work unit, differences in performance are
recognized in a meaningful way.'' \29\ 27 percent disagreed with that
claim.\30\
---------------------------------------------------------------------------
\27\ Office of Personnel Management, Federal Employee Viewpoint
Survey Dashboard, ``Core Performance (Q16) In my work unit poor
performers usually,'' at 7 (2024), available at https://www.opm.gov/fevs/reports/opm-fevs-dashboard/.
\28\ Id.
\29\ Id. at 6, ``Core Question Bank,'' Question No. 17.
\30\ See id. (Reporting Positive versus Negative ``Perception''
Score).
---------------------------------------------------------------------------
Commenters scrutinized reports cited by OPM in the proposed rule.
Commenter 0337 argued that the rule does not consider policy changes
already implemented to address problems with the probationary periods
including new OPM training and planning on performance management.
Commenter 0341 argued that agencies' failure to use probationary
periods is a management and training issue, not grounds for an
overhaul. Commenter 0443 added that reports showing these periods are
not effectively utilized by managers are not connected to the existence
of impartial and independent review under the MSPB.
OPM acknowledges these comments but disagrees that training and
management guidance alone are sufficient. OPM agrees that agencies
should improve supervisory training and performance-management
practices, and the rule does not preclude those efforts. But the record
also shows that
[[Page 49075]]
existing processes have not produced adequate results. In OPM's view,
the costs, formality, and litigation risk associated with MSPB appeals
have contributed to supervisors' reluctance to make full use of
probationary and trial periods. Additional training may improve
supervisory confidence, but it does not address the procedural
incentives that discourage timely action during the very period
designed to assess an employee's fitness for continued Federal service.
The rule therefore preserves the limited legal status of
probationary and trial period employees while creating a more
appropriate review mechanism for the narrow claims that remain
appealable. Such employees will continue to receive neutral, record-
based review by OPM's Merit System Accountability and Compliance (MSAC)
office, and the final rule includes safeguards insulating adjudicators
from officials who participated in the challenged personnel action or
provided case-specific advice concerning that action. This approach
maintains meaningful review for legally cognizable claims while
supporting the intended function to which E.O. 14284 restored
probationary and trial periods: allowing agencies to make timely,
evidence-based decisions about whether continued employment advances
the efficiency of the service.
Commenters 0449 and 0516 suggested that the rule misreads the 2024
FEVS since it applies to all Federal workers rather than exclusively
employees in their probationary or trial periods; most Federal workers
did not respond; and a majority did not agree that poor performers
usually remain in their work unit and continue to underperform.
Further, they suggest it is outdated since OPM cancelled the 2025 FEVS.
Commenter 0580 said that agencies should require another OPM FEVS to
collect data on OPM policies from 2025, and commenter 0581 noted FEVS
showed improvements in most scores since a dip between 2020 and 2021
attributable to the COVID-19 pandemic.
OPM is not required to conduct a new study to address the
persistent problems found in performance management and utilization of
the probationary period. OPM acknowledges that the FEVS does not
concentrate solely on probationary employees and that other initiatives
have been taken by agencies to improve employee performance and
accountability, however these initiatives do not correct the specific
issues addressed by the rule such as the lengthy appeals process
through adjudication from the MSPB. Additionally, OPM believes that it
is not sufficient that most Federal employees did not find poor
performance unaddressed in their work unit. The fact that FEVS showed
that a significant number of employees do not believe that poor
performance is adequately addressed in their work unit helps
demonstrate the need for a more efficient adjudication process for the
limited number of claims that are appropriately appealable following a
probationary termination.
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. 90 FR 17729 (Apr. 24, 2025). E.O. 14284
established Civil Service Rule XI to govern Federal agencies' use of
probationary and trial periods. Under Rule XI, agencies must assess and
certify their employees serving under probationary or trial periods
before finalizing their appointments to the Federal 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.
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-
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. The
rescission of subpart H meant that employees could not appeal any
terminations from a probationary or trial period. However, through
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. See 44 FR 48951-52 (Aug. 21, 1979).
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. See 5 U.S.C. 7511(a)(1).
However, Congress also granted, inadvertently or not,\31\ 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).\32\ For employees who did not meet the definition of
employee, they could not appeal, for example, a termination from the
Federal service. However, the CSC 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 CSC
or MSPB, respectively.\33\
---------------------------------------------------------------------------
\31\ Merit Systems Protection Board, Navigating the Probationary
Period after Van Wersch and McCormick (Sept. 2006), available at
https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.
\32\ See 5 U.S.C. 7511(a)(1)(A)(ii), (a)(1)(B)(ii),
(a)(1)(C)(ii); see also 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).
\33\ See, e.g., 33 FR 12422-23; 40 FR 15380; 44 FR 48951-52; 55
FR 29339; 79 FR 43922.
---------------------------------------------------------------------------
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. 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. See 44 FR 48951-52 (Aug. 21, 1979).
The final rule establishes limited grounds for employees serving a
probationary period in the competitive service and employees in the
excepted service covered by 5 CFR part 307
[[Page 49076]]
serving a trial period to appeal their terminations, or their employing
agencies' failure to finalize their appointments during those periods.
Under these regulations, such employees can challenge their
terminations or their agencies' failure to finalize their appointments
for alleged discrimination based on partisan political reasons or
marital status. These limited grounds of appeal reflect the historical
principle that probationary and trial 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.
See 5 U.S.C. 1103(a)(7), (c)(2)(F), 1104(b)(2); see also 5 CFR 5.3,
10.2-10.3.
III. Responses to Major Issues Raised by Commenters
A. OPM's Authority To Hear Probationary Appeals
Several commenters such as 0010, 0047, 0231, and 0620 argued that
the authority to hear appeals from probationary employees is legally
assigned to the MSPB. They believed this jurisdiction was established
by Congress in the CSRA. According to these commenters, moving this
authority from MSPB to OPM would be unlawful unless Congress amended
the law to specifically allow OPM to take over this responsibility. To
support their argument, they reference Chapters 12 and 77 of Title 5 of
the United States Code and other sections of the CSRA.
The commenters' reading of the CSRA is incorrect. As an initial
matter, the comments rest on an inaccurate premise: the CSRA itself
confers no appeal rights on probationary employees, and the limited
appeal rights formerly available under subpart H of part 315 were
created by regulation, not statute. The CSRA gives OPM extensive
discretion in regulating probationary periods. Pursuant to 5 U.S.C.
1301, ``[t]he 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.'' 5 U.S.C.
1104(b)(1). 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.'' 5 U.S.C. 1104(b)(3),
1103(a)(5). Under 5 U.S.C. 3321(a), the authority to prescribe rules,
regulations, and directives governing probationary periods rests with
the President, and the President has delegated to OPM, consistent with
5 U.S.C. 1104(a), the authority to prescribe the circumstances and
procedures for probationary and trial period appeals through E.O. 14284
and Civil Service Rule XI. Moreover, if OPM did not exercise that
delegated authority, appeals would not revert to the MSPB; covered
employees would simply have no appeals process at all. Courts have
recognized that Congress charged OPM with the authority to establish
conditions of employment including procedural protections. Nat'l
Treasury Emps. Union, 737 F.3d at 277-78. This includes rights to
challenge removals in violation of these protections. FLRA, 709 F.2d at
725 n. 3.
When crafting the CSRA, Congress gave the President, acting through
the Director of OPM, authority to create a regulatory right for
terminated probationary employees to appeal their termination. See 5
U.S.C. 3321(a), 1104(a). Nowhere in the CSRA did Congress extend
statutory appeal rights to probationary employees seeking to reverse a
termination. In fact, as noted in the proposed rule, the Senate
Committee for Government Affairs stressed the importance of not
providing such a right of appeal because the agency's discretion to
remove probationers was ``an extension of the examining process to
determine an employee's ability to actually perform the duties of the
position.'' S. Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978).
Congress went so far as to explicitly exclude probationary employees
from the definition of ``employee'' for purposes of 5 U.S.C. Chapter
75. See 5 U.S.C. 7501(1). Commenter 0134 noted this significant
statutory distinction.
Unlike OPM's authority to regulate probationer appeals, which
derives from the President's statutory authority under 5 U.S.C.
3321(a), delegated to OPM pursuant to 5 U.S.C. 1104(a) through E.O.
14284 and Civil Service Rule XI, the MSPB's jurisdiction to hear
termination appeals from a probationary or trial period employee is
derived from regulation. Specifically, the Federal Circuit has
explained that ``[t]he Board's jurisdiction to review adverse personnel
action taken against probationary government employees is extremely
narrow. In fact, there is no statutory basis for jurisdiction.'' Goss
v. Dep't of the Air Force, 131 F. App'x 721, 724 (Fed. Cir. 2005).
Moreover, ``[t]he only cognizable right of appeal by a probationary
employee to the MSPB is contained in the regulation previously
mentioned, 5 CFR 315.806.'' Mastriano v. FAA, 714 F.2d 1152, 1155 (Fed.
Cir. 1983). Congress authorized MSPB to be that venue if, and only if,
OPM designated such appeals be heard there. 5 U.S.C. 7701(a). That
designation was a policy choice, selected by virtue of regulation,
(subpart H of part 315 of title 5, Code of Federal Regulations).
Pursuant to Executive Order 14284, that regulation has been repealed.
Further, 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.'' 5 CFR 11.6(a). Civil Service Rule XI further
specifies that, ``[e]xcept as otherwise required by law, such appeals
shall be the sole and exclusive means of appealing terminations during
probationary or trial periods.'' 5 CFR 11.6(b).
In the CSRA, Congress did not direct that the MSPB have
jurisdiction over probationary appeals. At the time the CSRA was
passed, probationary appeals were housed within the Civil Service
Commission. Nothing in the CSRA altered that arrangement or mentions
probationary appeals. Further, AFGE v. OPM states ``if OPM chooses to
use the MSPB for dispute resolutions, it must take that statutory
device as it finds it.'' 821 F.2d 761, 769 (D.C. Cir. 1987) (emphasis
added). This declaration assumes that OPM may, in fact, choose not to
use the MSPB for dispute resolution and can create its own probationary
appeal process.
That conclusion is reinforced by the structure of 5 U.S.C. 7701.
MSPB hears
[[Page 49077]]
appeals that are properly before it under law, rule, or regulation.
Before E.O. 14284, OPM regulations supplied the relevant rule for the
narrow class of probationary appeals formerly heard by MSPB. Once those
regulations were rescinded and replaced, there was no independent
statutory command requiring those appeals to remain at MSPB. Civil
Service Rule 11.6 now expressly directs OPM to prescribe the
circumstances and procedures for appeals by employees terminated during
probationary or trial periods. OPM is exercising that authority in this
rule.
Commenter 0620 asserted that ``adjudicating employee appeals is
inherently a quasi-judicial activity function'' and so MSPB is best
positioned to adjudicate probationary appeals. The Commenter further
suggested that the MSPB has a more ``professionalized'' process than
OPM could establish, ``citing MSPB's use of administrative judges, its
publication of decisions, development of rules of evidence, and
establishment of precedential case law through Board review.''
OPM respectfully disagrees with the Commenter's criticisms.
Contrary to the claim that OPM lacks the professionalism and capability
of MSPB, OPM has shown it can effectively carry out the
responsibilities outlined in this rule through its experience with the
classification appeals process. OPM has established a fair, impartial,
and professional approach to handling classification appeals, making
decisions based solely on established facts without bias or improper
influence. This experience demonstrates OPM's ability to develop and
maintain a neutral and effective system for adjudicating appeals.
OPM intends to apply this proven framework to the adjudication
process under this rule. OPM will issue written decisions and make
final merits decisions publicly available, subject to applicable legal
limits, to promote transparency, consistency, and guidance for future
adjudications. While the Commenter points out that OPM will use
adjudicators instead of administrative judges, there is no meaningful
difference between these roles in terms of their function, and this
distinction does not affect the fairness or professionalism of the
process.
OPM disagrees with Commenter 0443 that moving these appeals to OPM
recreates the Civil Service Commission structure that Congress altered
in 1978. The rule does not give OPM general authority to adjudicate all
Federal employment disputes. It establishes an OPM-administered process
for a narrow class of regulatory appeals involving employees whose
appointments have not yet been finalized and who do not yet have tenure
or a property interest in their position. MSPB remains responsible for
matters within its statutory or regulatory jurisdiction. OSC, EEOC,
Inspectors General, and other forums remain available where an
independent legal basis for jurisdiction exists. The rule therefore
does not collapse the civil service remedial structure into OPM; it
establishes the limited matters that will be heard by OPM under part
751.
OPM notes finally that Executive Order 14284 eliminated Part 315,
subpart H in its entirety, including the limited MSPB appeals it
formerly provided. This rule creates a new process for appealing some
probationary terminations to OPM. If OPM were to decline to finalize
this rule then probationary employees would continue to have no appeals
process whatsoever. That no-appeals status quo--not the former MSPB
process--is the baseline against which this rule should be measured.
B. OPM's Capacity to Fairly Adjudicate Probationary Appeals
Commenters 0607 and 0615 asserted that relocating the appellate
venue from MSPB to OPM will make probationary and trial period appeals
less transparent and will thereby undermine public confidence in the
civil service. OPM disagrees.
The final rule creates a new forum--where none currently exists--
and procedures for a narrow class of regulatory appeals; it does not
make probationary or trial period personnel actions secret, exempt
agencies from generally applicable disclosure laws, or diminish the
merit system principles, prohibited personnel practice rules, or other
accountability mechanisms that continue to govern Federal employment.
Agencies remain subject to applicable statutory and regulatory
requirements governing records, disclosures, privacy, prohibited
personnel practices, equal employment opportunity, Inspector General
oversight, Office of Special Counsel (OSC) jurisdiction, and other
independent remedial processes.
OPM also disagrees that transparency depends on reinstituting MSPB
as the forum for these limited appeals. As explained elsewhere in this
preamble, MSPB's prior jurisdiction over probationary appeals was
regulatory rather than statutory. OPM may therefore provide an OPM-
administered process affording appeal rights that correspond to the
limited substantive grounds historically available to covered
probationary and trial period employees. The question is not whether
MSPB is the only possible transparent forum, but whether the final rule
provides sufficient procedural transparency and accountability for the
narrow issues that are appealable under part 751.
The final rule does so. OPM has committed to issuing written
decisions and making final merits decisions publicly available. In
particular, OPM will maintain a publicly accessible website containing
final decisions issued under part 751 that address a party's claim on
the merits, subject to applicable legal limits protecting privacy,
privileged information, protected personal information, law-
enforcement-sensitive information, and other information that may not
lawfully be publicly disclosed. This public decision requirement is
intended to promote consistency, permit public review of OPM's
reasoning, provide guidance to agencies and employees, and allow
interested parties to assess how OPM is applying part 751 over time.
The final rule also reflects OPM's intent to publish its decisions and
use them to promote consistency in future adjudications.
OPM further notes that the final rule contains additional
transparency safeguards. The agency must submit a response and all
documents in the agency record supporting the action. The appellant may
reply. The appellant, the appellant's representative, and the agency
may inspect OPM's appellate record, subject to applicable limits. OPM
may require additional information, conduct an audit or investigation
where necessary to determine a material fact, and issue a written
decision explaining the disposition of the appeal. The rule also
provides reconsideration and Director review before finality. These
procedures ensure that appeals are resolved on an identifiable record
and through reasoned decision-making, not through unexplained or
informal action.
OPM therefore declines to retain MSPB as the venue on transparency
grounds. The final rule preserves public accountability through written
decisions, a defined administrative record, and public availability of
final merits decisions. In OPM's judgment, this framework provides
transparency appropriate to the limited regulatory appeal rights at
issue while also supporting the rule's objective of a faster and more
focused probationary and trial period appeal process.
Many commenters, including 0006, 0203, 0395, and 0617, argued that
moving probationary appeals from
[[Page 49078]]
MSPB to OPM would deny employees an objective and independent
adjudicatory forum. These commenters asserted that OPM is a partisan
authority, that OPM has a conflict of interest because it has issued
governmentwide policy and guidance relating to probationary employees,
and that the new process would produce predetermined outcomes.
Commenters 0175 and 0198 similarly argued that the rule narrows appeal
grounds and procedures before a decisionmaker subordinate to political
leadership. Commenters 0036 and 0172 stated that employees will
perceive OPM adjudication as unfair because agencies benefit from
faster removals and because OPM adjudication will be opaque.
OPM disagrees. These comments rest on an incorrect premise about
the source and nature of the former MSPB forum. Congress did not create
a general statutory right for probationary employees to appeal
probationary terminations to MSPB. Rather, MSPB's jurisdiction over the
limited category of probationary appeals formerly covered by Sec.
315.806 was created by regulation. Congress excluded most probationary
employees from the statutory adverse-action appeal rights available to
employees who have completed the applicable period of service, and
Civil Service Rule XI nullified the former Sec. 315.806 and directed
OPM to prescribe the circumstances and procedures for appeals from
probationary and trial period terminations. The final rule therefore
provides a forum and procedures for a limited regulatory appeal; it
does not withdraw a statutory right to MSPB adjudication. No such right
exists.
OPM notes that declining to finalize this rule would not restore
MSPB jurisdiction over probationary appeals. Rather, employees on
probationary and trial periods would continue to have no ability to
appeal terminations over issues such as political discrimination. OPM
concludes that finalizing this rule and providing a transparent and
defined appeals process within OPM is preferable to maintaining that
status quo. Under that status quo, covered employees have no
administrative forum in which to challenge even a termination alleged
to be based on partisan political reasons.
OPM also disagrees that its institutional role creates a conflict
of interest. OPM does not make the employing agency's individualized
decision to terminate, not certify, or fail to finalize a particular
employee's appointment. Those determinations are made by the employing
agency. OPM's role under this rule is to adjudicate, based on the
record and the limited issues made appealable under part 751, whether
the appellant has established a basis for relief.
The fact that OPM administers civil service laws and regulations
does not make OPM incapable of adjudicating disputes under those laws.
Federal agencies routinely issue regulations, provide governmentwide
guidance, and adjudicate matters within their statutory
responsibilities. OPM itself is a clear example. Congress has vested
the OPM Director with responsibility for executing, administering, and
enforcing civil service rules and regulations and the laws governing
the civil service, including retirement and classification activities.
See 5 U.S.C. 1103. OPM also has express regulatory authority in several
civil service areas, including competitive service examinations and
veterans' preference administration. See 5 U.S.C. 1302. The fact that
OPM issues governmentwide personnel policy therefore does not make it
unusual for OPM also to resolve particular disputes arising under that
same statutory framework.
OPM has long maintained adjudicative or quasi-adjudicative
processes in personnel matters. For example, OPM adjudicates
classification appeals under 5 CFR part 511, subpart F. Employees may
request an OPM decision on the proper occupational series, grade, or
chapter 51 coverage of their official positions, and agencies may
appeal certain OPM classification certificates. In those appeals, OPM
may request written facts, investigate, or audit the position; OPM's
appellate decision is final unless OPM reconsiders it; and the decision
is binding on administrative, certifying, payroll, disbursing, and
accounting officials.
OPM also adjudicates Fair Labor Standards Act claims under 5 CFR
part 551, subpart G. Those procedures cover FLSA exemption-status
determinations, minimum-wage and overtime-pay claims, and child-labor
complaints. Covered claimants may file with either the employing agency
or OPM, but not both at the same time, and an OPM FLSA claim decision
is final and not subject to further administrative review. Similarly,
OPM settles certain compensation and leave claims under 5 CFR part 178;
those claims are resolved on the written record, with the burden on the
claimant, and OPM's settlement is final within OPM. OPM regulations
also provide for appeals to OPM from certain examination ratings or
application rejections.
Other agencies operate in the same manner. The EEOC issues Federal-
sector EEO regulations and adjudicates appeals from agency final
actions, dismissals, class-complaint decisions, and certain grievance
decisions raising discrimination issues. See 29 CFR 1614.401(a)-(e).
EEOC's Office of Federal Operations issues written appellate decisions
on behalf of the Commission, applying specified standards of review and
providing for finality unless reconsideration is granted. 29 CFR
1614.405(a)-(c). The FLRA likewise provides governmentwide leadership
and guidance on Federal labor-management relations while resolving
representation, negotiability, unfair-labor-practice, and arbitration
matters. See 5 U.S.C. 7105. These examples show that combining policy,
guidance, and adjudication within the same agency is a familiar feature
of Federal administration in general, and Federal workforce
administration in particular, not evidence of structural bias.
Nor does the fact that OPM is headed by a presidentially appointed
Director establish bias. Like MSPB, OPM is an independent agency. 5
U.S.C. 1101. Both the OPM Director and MSPB Members are appointed by
the President with the advice and consent of the Senate and serve at
the President's pleasure. Indeed, MSPB members no longer enjoy for-
cause removal protections and are removable at will, so MSPB possesses
no greater structural independence from the President than does
OPM.\34\ The principal structural difference between MSPB and OPM is
that the MSPB is led by three members while OPM is headed by a single
director. But a tripartite versus single-head leadership structure has
little bearing on an agency's capacity to issue impartial decisions.
Consequently, OPM rejects the argument that greater MSPB independence
makes it a more appropriate venue for probationary appeals; the premise
is inaccurate.
---------------------------------------------------------------------------
\34\ See Harris v. Bessent, 160 F. 4th 1235 (D.C. Cir. 2025);
see also Trump v. Slaughter, No. 25-332 (June 29, 2026).
---------------------------------------------------------------------------
The relevant question is whether the adjudicatory structure creates
a constitutionally intolerable risk of actual bias or prejudgment--not
whether the agency head is politically accountable. Administrative
adjudicators are presumed to act with honesty and integrity, and the
combination of investigative, policymaking, and adjudicative functions
in an agency does not, without more, violate due process. Withrow v.
Larkin, 421 U.S. 35, 47, 58
[[Page 49079]]
(1975). The Supreme Court has also rejected the proposition that agency
decisionmakers are disqualified merely because they previously
investigated, reported on, or expressed policy views concerning related
issues. FTC v. Cement Inst., 333 U.S. 683, 700-03 (1948). Due process
concerns arise from more concrete circumstances, such as a direct
pecuniary interest, personal involvement, personal animus, or an
objectively intolerable probability of actual bias. See Tumey v. Ohio,
273 U.S. 510, 523, 532 (1927); Withrow, 421 U.S. at 47; Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 884-87 (2009).
The Administrative Procedure Act (APA) itself reflects the same
principle. It permits agency review of initial decisions by presiding
employees and provides that, on review, the agency has the powers it
would have had in making the initial decision, subject to any limits
imposed by rule or notice. 5 U.S.C. 557(b). The APA's separation-of-
functions provision also expressly does not apply to ``the agency or a
member or members of the body comprising the agency.'' 5 U.S.C.
554(d)(2)(C). Federal administrative law therefore does not treat
agency-head accountability as equivalent to bias; it looks instead to
whether the process includes appropriate safeguards against
prejudgment, improper influence, or conflicts of interest.
Ultimately, OPM must determine whether the rule provides a fair and
reasoned adjudicatory process for the limited appeal rights at issue.
OPM concludes that it does. Here, the final rule provides a defined
administrative process, requires decisions to be based on the record,
preserves the limited substantive appeal grounds historically available
to covered probationary employees, and includes safeguards against
arbitrary or predetermined decision-making.
Those safeguards are substantial. Appeals are not assigned to the
agency officials who took the challenged action. Rather, OPM personnel
assigned to adjudicate appeals must be insulated from officials who
participated personally and substantially in the challenged personnel
action or provided case-specific advice concerning that action; OPM
adjudicators may not consider material ex parte communications on the
merits; and OPM-employee appeals must be assigned to an administrative
law judge, whose initial decision may be disturbed only on limited
grounds.
Further, the agency must submit a response and all documents in the
agency record supporting the action. The appellant may reply. OPM may
require additional information, audit or investigate an agency's action
when doing so is necessary to determine a material fact, and conduct a
hearing where the written record is insufficient or where credibility
issues make a hearing necessary and efficient. OPM will issue written
decisions, allow reconsideration, and permit Director review before
finality. Those are the safeguards relevant to adjudicatory fairness;
the mere fact that OPM is headed by a presidentially appointed Director
is not a basis for finding institutional bias.
OPM further disagrees that the new process will be opaque. OPM has
committed to make its decisions public. The final rule provides that
OPM will maintain a publicly accessible website containing final
decisions issued under part 751 that address a party's claim on the
merits, subject to applicable legal limits protecting privacy,
privileged information, protected personal information, law-
enforcement-sensitive information, and other information that may not
lawfully be publicly disclosed. Public availability of final merits
decisions will promote consistency, allow employees and agencies to
understand OPM's reasoning, and permit the public to assess how OPM is
applying the rule over time. The rule therefore does not create a
closed process with hidden outcomes. It creates a written, record-based
process with public final merits decisions.
Commenters 0430, 0450, 0454, and others asserted that OPM will not
have enough employees to review probationary appeals, that the appeals
experience will become more difficult for employees, and that OPM
employees will be overburdened by additional duties. OPM disagrees. The
rule establishes a streamlined process tailored to a narrow class of
regulatory appeals. These appeals are limited to specified issues:
partisan-political reasons, marital status, and certain procedural
claims involving terminations based in whole or in part on pre-
appointment reasons. The final rule does not require OPM to replicate
the full MSPB adjudicatory structure for chapter 75 adverse actions. By
using electronic filing, written submissions, required agency records,
targeted record development, and hearings only where necessary and
efficient, the rule reduces unnecessary process while preserving fair
adjudication of the issues that remain appealable. OPM has assessed the
expected case volume and resource needs and has determined that MSAC
and OPM's adjudicatory staff can administer the process. OPM will
monitor implementation and may adjust internal staffing, case-
management practices, and guidance as necessary.
Commenters 0006, 0010, 0013, 0030, 0617, and others asserted that
making OPM the forum for these appeals forces appellants to litigate
before the same entity that directed agencies to terminate them or fail
to certify their appointments. OPM disagrees with that
characterization. OPM does not direct agencies to terminate or refuse
to certify particular employees. Agencies are responsible for
evaluating their own probationary and trial period employees and for
making the individualized personnel decisions challenged in any appeal.
OPM's role in issuing governmentwide rules or guidance does not make it
the deciding official in each agency's personnel action. Under the
final rule, OPM will review the agency's action through the part 751
process, not defend or ratify a predetermined outcome.
Commenters 0038, 0307, and 0417 argued that the rule weakens the
ability to challenge OPM decision-making. Commenter 0485 further argued
that OPM adjudication creates a risk of bias because certain OPM
actions or guidance have been alleged or found likely unlawful in other
contexts. Commenters 0421, 0444, and 0578 argued that OPM cannot
independently review terminations they contend OPM directed, and that
the Director's ability to review decisions gives final authority to a
political appointee without recourse to Article III courts.
OPM disagrees. Allegations regarding separate guidance, separate
litigation, or separate personnel actions do not establish that OPM
adjudicators will fail to decide part 751 appeals fairly. If an
appellant contends that an employing agency acted unlawfully in a
specific case, the appellant may raise any issue that is appealable
under Sec. 751.101(c) and may pursue any independent remedy available
before EEOC, OSC, MSPB, an Inspector General, or another authorized
forum. Further, OPM notes that if it does not finalize this rule
probationary employees will remain without any appeals.
Finally, commenters 0001, 0029, 0043, 0479, 0585, and others
asserted that the rule is intended to ``cover up'' or obscure
probationary terminations that occurred in 2025. Commenters 0019 and
0421 suggested that the rule would nullify pending and future
probationary employee cases and allow agencies to avoid accountability
for prior conduct. OPM disagrees. The final rule is prospective.
Terminations effected before the effective date of the rule are not
governed by this final rule, and the rule does not reopen, extinguish,
or
[[Page 49080]]
nullify pending appeals or past decisions. Rather, probationary
terminations effectuated between the issuance of Executive Order 14284
and the finalization of this rule are not subject to any administrative
appeal. The rule is not designed to affect the outcome of prior
personnel actions or pending litigation. Rather, it creates procedures
that will govern covered appeals going forward.
For these reasons, OPM declines to restore MSPB as the adjudicatory
forum based on generalized concerns about bias, opacity, staffing, or
political influence. The final rule provides a neutral administrative
process appropriate to the limited regulatory rights at issue;
provides--where none now exist--appeal rights on the historically
narrow substantive grounds for covered probationary appeals; makes
final merits decisions public; and leaves intact independent remedies
available under other statutes and regulations.
C. Due Process, Written Record, Hearings, Discovery, and Burden of
Proof
Commenters 0086, 0322, 0398, and 0500 raised due process concerns,
arguing that procedures limited to the written record would be unfair
and one-sided toward the agency without the due process rights to a
hearing and discovery, as well as giving OPM unilateral authority to
decide cases on the written record it controls and to reopen decisions.
Commenters 0423 and 0430 argued that removing the agency requirement to
disclose the reason for termination and placing the burden of proof on
the employee blocks any successful appeal. Commenters 0444 and 0500
claimed that eliminating discovery also makes claims functionally
unprovable and that the lack of hearings and discovery provide
information asymmetries that give government agencies an advantage.
Commenter 0502 added that this limits the ability to develop a
sufficient factual record of circumstances to render an informed
decision. Commenters 0485 and 0516 contended that the proposed rule
failed to satisfy due process requirements by narrowing appealable
claims, limiting procedural safeguards and eliminating independent
adjudication, adding that these deficiencies mean the rule fails to
meet the Mathews balancing test.\35\
---------------------------------------------------------------------------
\35\ Mathews v. Eldridge, 424 U.S. 319 (1976).
---------------------------------------------------------------------------
Commenter 0448 stated that it would be impossible to prove partisan
or marital discrimination as the rule removes essential tools like the
deposition of supervisors and the ability to examine internal
communications. Commenter 0335 suggested that shortening the length of
appeals benefits no one except the executive branch. And commenters
0339, 0380, 0414, and 0447 criticized the rule for replacing hearings
and discovery with an OPM audit in which appellants cannot compel
evidence, subpoena witnesses, or cross-examine.
OPM has carefully considered these concerns but declines to provide
an automatic right to discovery or a hearing in every part 751 appeal.
The appeal rights preserved in part 751 are narrow. Covered employees
may raise allegations that the action was based on partisan political
reasons or marital status and may raise specified procedural issues
where a termination is based in whole or in part on conditions arising
before appointment. These issues do not require the full range of
procedures associated with statutory adverse-action appeals under
chapter 75. A default written-record process is proportionate to the
limited regulatory rights at issue and is consistent with the
government's interest in preserving the probationary and trial period
as an effective final stage of examining and assessing an employee
before finalizing an appointment.
OPM also disagrees that the final rule leaves appellants dependent
on an agency-created record. The final rule requires the agency to
submit a response and the agency record. The appellant may reply. OPM
may audit or investigate the agency's action when doing so is necessary
to determine a material fact. OPM may require additional information
from the agency or the appellant. OPM may also conduct a hearing where
the written record is insufficient to resolve a material factual
dispute or where material credibility issues make a hearing necessary
and efficient. These tools allow OPM to develop the record where
necessary without requiring full discovery and a hearing in every case.
OPM concludes that the procedures adopted in the final rule are
adequate and proportionate for the limited issues that may be appealed
under part 751. The final rule provides the substantive appeal grounds
historically available for covered probationary employees--grounds that
do not exist at all under the current baseline--through a process
tailored to those narrow claims.
Commenter 0317 asserted that the Fifth Amendment requires that
Federal employees have a fair opportunity to appeal decisions.
Commenter 0150 claimed that OPM has engaged in illegal conduct since
2025, violating the constitutional right to due process. Commenters
0307, 0310, 0314 and 0516 argued that courts recognize employment
rights and these cannot be extinguished arbitrarily; Loudermill held
that employees possess a property interest in continued employment that
entitles them to protections, including notice of reason for removal
and an opportunity to respond.\36\ Commenter 0421 added that
probationary employees denied discovery, hearings or independent review
will argue to courts that they have been deprived of property and
liberty interests without due process of law.
---------------------------------------------------------------------------
\36\ Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
---------------------------------------------------------------------------
OPM agrees that agencies must comply with applicable law and
regulations when taking action against probationary and trial period
employees. The final rule does not authorize terminations for unlawful
reasons, and it preserves appeals alleging partisan-political
discrimination, marital-status discrimination, and specified procedural
defects in cases based on pre-appointment reasons.
But probationary and trial period employees do not have the same
statutory property interest and concomitant due process protections as
employees who have completed the applicable period of service. Smith v.
Lehman, 689 F.2d 342, 345 (2d Cir. 1982), clarified that probationary
employees lack a property interest in continued employment and receive
only minimal procedural protection. The probationary and trial period
remains an extension of the examining process. Congress and the
President have preserved agency flexibility during that period because
the government has a strong interest in determining, before an
appointment is finalized, whether continued employment serves the
public interest and the efficiency of the service.
The procedures in part 751 are therefore calibrated to the
employee's limited status and the narrow issues that may be appealed.
The final rule does not convert probationary or trial period
terminations into chapter 75 adverse actions, and it does not create a
general appeal right for claims that fall outside Sec. 751.101(c). To
the extent an employee has an independent statutory claim before
another forum, the final rule does not displace that remedy. Further,
OPM notes that the rule creates an appeals process where none currently
exists. The rule thus gives probationary and trial period employees
substantially more procedural protections than they currently possess.
[[Page 49081]]
Commenters 0450 and 0515 argued that restricting hearings to
circumstances in which OPM determines that a hearing is ``necessary and
efficient'' will allow OPM to deny hearings in most cases. Commenters
such as 0049, 0051, and 0062 similarly asserted that the absence of a
guaranteed hearing or formal discovery right will tilt the appeals
process in favor of agencies. These commenters contended that agencies
will possess most relevant information, that appellants may be unable
to uncover evidence of pretext or procedural irregularity, and that
credibility disputes cannot be fairly resolved on the written record.
OPM has considered these comments but declines to create an
automatic right to discovery or a hearing in every appeal under part
751. The appeal rights preserved in this final rule are narrow
regulatory rights. Covered appellants may raise only the issues
identified in Sec. 751.101(c): whether the action was based on
partisan political reasons or marital status, and whether the agency
failed to follow the specified procedures applicable to a termination
based in whole or in part on conditions arising before appointment.
These are not ordinary chapter 75 adverse-action appeals, and Congress
did not give probationary employees the same procedural rights that
apply to employees who have completed the applicable period of service.
OPM therefore concludes that a default written-record process is
appropriate and proportionate to the limited issues that may be
appealed.
OPM disagrees, however, that the final rule leaves appellants
dependent on whatever record an agency chooses to create. The final
rule requires the agency to file a response and provide the agency
record. The agency record must include the materials considered or
relied upon in taking the action, documentation relevant to the
appellant's appointment and probationary or trial period status, and
other documents necessary to adjudicate jurisdiction, timeliness,
appealability, and the merits of any appealable claim. The appellant
may then file a reply to the agency's response and may address factual
or legal issues raised by the agency. These procedures are intended to
reduce information asymmetry and ensure that OPM decides appeals on an
identifiable record rather than on unsupported agency assertions.
The final rule also gives OPM tools to develop the record when the
written submissions are insufficient. OPM may require additional
information, audit or investigate an agency's action when doing so is
necessary to determine a material issue of fact, and conduct a hearing
where the written record is insufficient to resolve a material factual
dispute or where a material credibility issue makes a hearing necessary
and efficient. OPM's standard does not mean that hearings will be
denied whenever a hearing would be inconvenient. It means that hearings
will be used when they are needed to resolve issues that matter to the
disposition of the appeal, rather than as a routine procedural step in
every case regardless of need. This approach preserves fairness while
avoiding unnecessary delay and expense in cases that can be resolved on
the written record.
Commenters 0008, 0167, 0357, 0430, and 0408 asserted that placing
the burden on appellants to establish timeliness, OPM jurisdiction, and
the appealable basis for the claim is unfair, even if lawful. OPM
disagrees. The appellant is the party invoking OPM's limited regulatory
jurisdiction under part 751. It is therefore appropriate for the
appellant to establish, by a preponderance of the evidence, that the
appeal was timely filed, that OPM has jurisdiction, and that the
appellant has raised an issue made appealable by Sec. 751.101(c). This
allocation is consistent with the limited nature of probationary appeal
rights and with the general principle that a party seeking relief must
establish the basis for that relief.
At the same time, the final rule does not require appellants to
prove their claims without access to the agency's explanation and
records. The agency must respond and produce the agency record; the
appellant may reply; and OPM may obtain additional information where
necessary. In addition, if the agency record is incomplete,
inconsistent, or insufficiently developed on a material issue, OPM may
take that into account in deciding whether further record development,
an audit, an investigation, or a hearing is warranted. The burden-of-
proof provision therefore does not make the agency's action
unreviewable. It identifies which party must establish threshold
jurisdictional and appealability matters and, where the merits are
reached, the factual predicate for the limited claims allowed under the
rule.
Commenters 0002, 0029, 0077, 0160, 0253, and others asserted that
agencies should be required to provide an appellant with a rationale
for dismissal. OPM declines to adopt a general rationale-for-dismissal
requirement beyond the requirements preserved in the final rule. The
historical probationary appeal framework distinguished between
terminations based on post-appointment performance or conduct and
terminations based in whole or in part on conditions arising before
appointment. The final rule preserves that distinction. Where an agency
terminates an employee based in whole or in part on conditions arising
before appointment, the employee may appeal whether the agency failed
to provide the specified procedural protections, including advance
written notice stating the reasons for the proposed action, a
reasonable time to answer, and a written decision. OPM has preserved
that limited procedural appeal because pre-appointment reasons raise
distinct fairness concerns.
OPM does not, however, make every probationary or trial period
termination independently appealable based on the adequacy of the
agency's explanation. The probationary and trial period is part of the
examining and assessment process, and an appointment is not finalized
merely by the passage of time. Agencies must comply with Civil Service
Rule XI (5 CFR part 11) and applicable law, but the final rule does not
convert probationary or trial period separations into chapter 75
adverse actions requiring the full statement-of-charges process
applicable to covered employees. Nor does the final rule make failure
to provide written notice of the effective date under 5 CFR 11.5,
standing alone, a basis for reversal. Such notice serves an important
administrative function, but it does not itself establish that an
action was based on partisan political reasons or marital status, nor
does it establish a violation of the specific pre-appointment
procedures preserved in Sec. 751.101(c).
Commenters 0429 and 0572 claimed that OPM improperly assumes that
non-attorney staff will be able to adjudicate appeals and that due
process concerns arise unless appeals are handled by attorneys trained
for that task. OPM disagrees. The final rule does not require OPM to
use only attorneys, administrative judges, or administrative law judges
in every case. The relevant question is whether OPM assigns personnel
who are qualified to apply the governing regulation, evaluate the
record, make findings on the limited issues presented, and issue
reasoned decisions. OPM has experience administering record-based
adjudicatory functions and will assign personnel with appropriate
training and expertise to adjudicate appeals under part 751. Further,
as noted above, constitutional due process requirements do not attach
to probationary employees who lack a cognizable property interest in
their job.
OPM also notes that these appeals involve a defined set of legal
and factual
[[Page 49082]]
issues. The adjudicator must determine timeliness, jurisdiction,
appealability, and, where appropriate, whether the appellant has
established one of the limited claims permitted by Sec. 751.101(c).
OPM will provide internal procedures, training, supervisory review,
reconsideration, and Director review before finality to promote
consistency and correct material errors. The final rule also provides
an additional safeguard for appeals filed by OPM employees by assigning
those appeals to an administrative law judge. OPM therefore declines to
adopt a categorical rule requiring attorney adjudicators or
administrative law judges in every part 751 appeal.
Some commenters assert that OPM or employing agencies may modify,
omit, or shape records to support predetermined outcomes. OPM takes
record integrity seriously but does not agree that speculative concerns
about possible misconduct justify retaining the prior MSPB forum or
imposing full discovery and hearing procedures in every case. Agencies
remain subject to generally applicable legal obligations governing
official records, personnel records, prohibited personnel practices,
false statements, and misconduct. The final rule also requires agencies
to produce the agency record, permits appellants to reply, allows OPM
to require additional information, and authorizes OPM to audit or
investigate where necessary to determine an issue of material fact. If
an appellant identifies a material inconsistency, omission, or other
reason to question the completeness or reliability of the agency
record, OPM may consider that issue in determining whether further
development is needed and in deciding the appeal.
Commenters 0212, 0356, 0396, and 0406 asserted that the Director's
authority to oversee and, if necessary, reverse a decision subjects the
process to undue political influence. In response to comments
expressing concern that Director review could be too open-ended or
could undermine the perceived neutrality of OPM adjudication, OPM has
revised Sec. 751.108 to identify nonexclusive considerations that may
inform the Director's decision to reopen and reconsider a nonfinal
probationary or trial period appeal decision. Under the final rule, the
Director may act on the Director's own initiative and only before a
decision becomes final under Sec. 751.109. In determining whether to
exercise that authority, the Director may consider, among other things,
whether the decision may contain clear legal error, may rest on an
erroneous finding of material fact, may involve an issue of exceptional
importance, may affect the governmentwide administration of civil
service laws, rules, regulations, or OPM policy, may conflict with
another OPM decision, or may otherwise warrant Director review.
This revision responds to commenters who objected to Director
review as insufficiently cabined, while preserving final agency
supervision over important legal, factual, policy, consistency, and
governmentwide civil service issues. OPM has retained sua sponte
Director review because final agency oversight promotes decisional
consistency and accountability within OPM's adjudicatory process. The
revision does not create a separate right for parties to request
Director review; parties may seek reconsideration under Sec. 751.107.
If the Director reopens and reconsiders a decision under Sec. 751.108,
the Director may take any action available under Sec. 751.107(c). This
structure preserves meaningful principal-officer oversight while
clarifying that Director review will occur within the rule's record-
based adjudicatory framework, including the final rule's agency-record,
separation-of-functions, ex parte, reconsideration, and finality
provisions.
OPM declines to eliminate Director review entirely. Director review
serves both administrative and constitutional functions. As an
administrative matter, it ensures that OPM can correct material legal,
factual, or procedural errors before a decision becomes final; resolve
recurring or important questions of interpretation; and promote uniform
application of part 751 across agencies. That review function is
especially important in a governmentwide personnel system, where
inconsistent interpretations by subordinate adjudicators could produce
uneven appeal rights for similarly situated probationary or trial
period employees in different agencies. Cf. 5 U.S.C. 1103(a)(1), (3),
(5) (vesting the OPM Director with responsibility for securing
``accuracy, uniformity, and justice'' in OPM's functions, directing and
supervising OPM employees, and executing, administering, and enforcing
civil service laws and regulations).
Director review also reinforces the rule's consistency with the
Appointments Clause. The Constitution requires principal officers to be
appointed by the President with the advice and consent of the Senate,
while Congress may vest appointment of inferior officers in the
President alone, courts of law, or heads of departments. U.S. Const.
art. II, sec. 2, cl. 2. The OPM Director is a presidentially appointed,
Senate-confirmed officer. 5 U.S.C. 1102(a). Under the Supreme Court's
Appointments Clause precedents, inferior officers must remain subject
to direction and supervision by a properly appointed superior officer.
Edmond v. United States, 520 U.S. 651, 663-65 (1997). In the
adjudicatory context, the Court has treated the availability of review
by a superior executive officer as a significant feature distinguishing
inferior officers from principal officers. Id. at 665.
That principle is particularly relevant where subordinate
adjudicators exercise significant authority under Federal law. The
Supreme Court has held that officials who occupy continuing offices and
exercise significant discretion in conducting adjudications may be
``Officers of the United States'' rather than mere employees. See
Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991); Lucia v. SEC, 585 U.S.
237, 245-51 (2018). Consistent with those decisions, the Director of
OPM--exercising the appointment authority vested in the Director by 5
U.S.C. 1103(a)(2)--will appoint, or ratify the appointment of, the
officials who adjudicate appeals under this rule, and the rule further
provides for supervision and review by the Director, a principal
officer, before OPM's decision becomes final.
The Supreme Court's decision in United States v. Arthrex, 594 U.S.
1, 22-23 (2021), confirms the importance of that structure. There, the
Court held that administrative patent judges could not constitutionally
issue unreviewable final decisions on behalf of the Executive Branch
while being appointed only as inferior officers. The constitutional
problem was not that subordinate adjudicators participated in deciding
cases; it was that their decisions were insulated from review by a
principal officer. Id. at 25-26. The Court's remedy was to permit
discretionary review by the Director of the Patent and Trademark
Office, explaining that the Director need not review every decision,
but must have authority to review decisions if he chooses. Id. at 27-
28.
Part 751 follows that model. OPM adjudicators may issue initial
decisions, and OPM may reopen and reconsider those decisions on party
request or on its own initiative. In addition, the Director may, in his
or her discretion, reopen and reconsider any appeal in which OPM has
issued a decision that has not yet become final, and a decision issued
by the Director is the final decision of OPM. This structure ensures
that no subordinate adjudicator has unreviewable authority to bind OPM
or the Executive Branch in an appeal under part 751.
[[Page 49083]]
D. Scope of Covered Employees and Appeal Rights
Several commenters (for example, 0553, 0543, 0548, and 0467) urged
OPM to clarify or expand the final rule to permit employees in the
excepted service serving a trial period under Civil Service Rule XI to
appeal trial period terminations to OPM on the same grounds as
competitive service probationers. OPM declines to adopt that approach.
The final rule establishes a new appeals process whose substantive
scope corresponds to the probationary and trial period appeal rights
that existed before E.O. 14284, with a different forum and different
procedures. Before E.O. 14284, subpart H of part 315 applied to
probation on initial appointment to a competitive position. It did not
create a general appeal right for employees serving trial periods in
the excepted service. Excepted-service employees serving trial periods
had appeal rights only where Congress or another regulation
independently provided them. For example, part 307 provides particular
appeal rights for individuals serving under Veterans Recruitment
Appointments. The final rule preserves that limited category by
including employees appointed under part 307 to the extent they
previously had comparable appeal rights, but it does not create a new,
across-the-board appeal right for all excepted-service trial period
employees.
This limitation is consistent with the structure of the CSRA.
Congress distinguished between competitive service employees, excepted
service preference eligibles, and excepted service non-preference
eligibles for purposes of adverse-action appeal rights. In particular,
Congress generally did not provide excepted service employees full
adverse-action appeal rights until they completed the applicable period
of current continuous service. OPM does not read E.O. 14284 or Civil
Service Rule XI as requiring OPM to expand those statutory or
regulatory appeal rights to excepted service employees who had no such
right before the Executive Order.
Civil Service Rule XI uses ``probationary period'' for the
competitive service and ``trial period'' for the excepted service, and
it establishes a common certification framework for both categories.
That terminology and certification framework do not themselves create
identical appeal rights for all employees serving probationary or trial
periods. Civil Service Rule 11.6 authorizes the Director of OPM to
prescribe the circumstances and procedures for appeals; it does not
require OPM to create new appeal rights for categories of employees who
did not previously possess them.
Expanding part 751 to cover all excepted service trial period
employees would be a substantive enlargement of appeal rights rather
than a conforming implementation of E.O. 14284. Such an expansion would
be inconsistent with the purpose of the probationary and trial period
system: to preserve agency flexibility during the initial period of
assessment before an appointment is finalized. It would also risk
creating uncertainty by granting appeal rights to employees whose
appointments, statutory coverage, and excepted service authorities vary
substantially across agencies and programs.
Accordingly, the final rule limits part 751 coverage to the
categories identified in Sec. 751.101(f). Excepted service employees
serving trial periods outside those categories may not appeal under
this part unless they are otherwise entitled to appeal by statute or
another applicable regulation. Nothing in the final rule prevents such
employees from pursuing any claim or remedy that falls within the
jurisdiction of the EEOC, the OSC, an Inspector General, the Merit
Systems Protection Board, the Department of Labor, or another forum
where an independent legal basis for such jurisdiction exists.
E. EEOC, OSC, MSPB, and Other Forums
Commenter 0004 and others contended that the rule does not
sufficiently explain how part 751 interacts with MSPB procedures in
cases involving overlapping claims, mixed cases, constructive adverse
actions, or employees transitioning out of probationary status. OPM has
considered these comments and provides the following clarification.
Part 751 establishes a limited OPM appeal process for the
categories of employees and claims identified in Sec. 751.101. It does
not displace independent statutory or regulatory jurisdiction assigned
to another forum. If an employee is covered by part 751 and alleges
that a probationary termination, noncertification, failure to certify
and finalize an appointment, or covered supervisory or managerial
probationary action was based on partisan political reasons or marital
status, that claim is brought to OPM under this part. If the employee
alleges discrimination under statutes administered by the EEOC, the
employee may pursue that claim through the Federal-sector EEO process.
If the employee alleges a prohibited personnel practice within OSC's
jurisdiction, the employee may file with OSC. If the employee claims
that the employee was not actually a probationary or trial period
employee because the employee had completed the service necessary to
qualify as an ``employee'' under chapter 75, or if the employee asserts
an independent statutory appeal right such as a claim under USERRA or
VEOA, the final rule does not preclude the employee from seeking review
in the forum Congress provided.
This allocation of claims reflects the structure of the current
civil service remedial scheme. Congress and the President have not
created a single universal forum for every type of personnel claim.
Instead, different forums address different legal questions: OPM will
adjudicate the narrow probationary and trial period appeal issues
preserved in Sec. 751.101(c); EEOC will adjudicate claims under the
Federal-sector antidiscrimination statutes it administers; OSC will
address matters within its prohibited-personnel-practice jurisdiction;
and MSPB will continue to adjudicate matters within its independent
statutory or regulatory jurisdiction. Section 751.101(e) therefore
makes the part 751 process exclusive only for appeals covered by this
part, while preserving other claims where another forum has an
independent legal basis for jurisdiction.
OPM also clarifies how part 751 applies when an employee is
transitioning out of probationary status. The relevant question is the
employee's legal status and the nature of the action at issue. If the
employee has completed one year of current continuous service under
other than a temporary appointment limited to one year or less and is
not otherwise excluded from coverage, the employee may be covered by
the procedures in part 432 or part 752, rather than part 751. If the
employee remains within the categories defined in Sec. 751.101(f), the
limited part 751 process applies. If the employee disputes probationary
status itself, that threshold issue may be raised because OPM must
determine its own jurisdiction and the applicability of part 751 before
resolving the merits of any appeal.
OPM further clarifies that the label an appellant gives a claim
does not determine the forum. A claim styled as a ``constructive
adverse action'' will not be heard under part 751 unless the appellant
establishes that the matter falls within OPM's jurisdiction and raises
an issue made appealable by Sec. 751.101(c). Conversely, if the
[[Page 49084]]
employee alleges facts showing that the action is actually appealable
to MSPB under an independent statutory or regulatory basis--such as
because the employee had already acquired chapter 75 coverage--nothing
in part 751 prevents the employee from presenting that jurisdictional
argument to MSPB. Part 751 does not expand MSPB jurisdiction, but it
also does not eliminate MSPB jurisdiction that exists independently of
this rule.
Multiple commenters, including 0049, 0119, 0250, 0352, and many
others, stated that probationary employees should have a choice to
bring mixed cases to MSPB or EEOC. Commenters 0252, 0607, and 0613
expressed concern that probationary employees are especially vulnerable
to discrimination and that limiting OPM appeals could hide patterns of
abuse. OPM does not agree that the final rule eliminates discrimination
remedies or conceals discriminatory conduct.
The final rule does not bar probationary or trial period employees
from filing discrimination complaints. It directs discrimination claims
to the forum Congress and regulation have made responsible for Federal-
sector discrimination claims: the EEOC process. Employees who believe
they were discriminated against based on race, color, religion, sex,
pregnancy, national origin, age, disability, genetic information, or
other protected status under statutes administered through the Federal-
sector EEO process may continue to pursue those claims through that
process. The final rule does not narrow the substantive protections of
Title VII, the ADEA, the Rehabilitation Act, the ADA-related Federal-
sector framework, or other laws administered through the EEO process.
Nor does it prevent an employee from seeking judicial review where the
applicable discrimination statute and EEO framework provide such
review.
OPM disagrees that probationary employees must have an MSPB ``mixed
case'' option for these claims. Congress did not create a general
statutory right for probationary employees to bring probationary
termination appeals to MSPB. The prior ability to attach certain
discrimination allegations to an MSPB probationary appeal depended on
OPM's former regulatory choice to route a narrow class of probationary
appeals to MSPB. Once E.O. 14284 rendered those regulations inoperative
and Civil Service Rule XI directed OPM to prescribe the circumstances
and procedures for probationary and trial period appeals, OPM was not
required to recreate the prior mixed-case structure for probationary
appeals. OPM has instead determined that discrimination claims should
be handled by the EEO process, while OPM resolves the limited
probationary issues identified in Sec. 751.101(c).
Many commenters, including Commenters 0028, 0260, 0368, and 0497,
suggested that the rule bars probationary employees from filing
complaints with the EEOC or otherwise strips employees of rights to
make discrimination claims. Those commenters are mistaken. The rule
does not eliminate any substantive right to be free from unlawful
discrimination. It separates claims by legal source and forum. OPM will
decide the limited issues assigned to OPM under part 751. EEOC and
agency EEO offices will address claims under the Federal-sector anti-
discrimination laws. That approach channels claims to the entity with
specialized responsibility for the relevant body of law and avoids
requiring OPM to adjudicate claims that this final rule does not assign
to it.
Commenters 0289, 0293, and 0296 correctly noted that probationary
employees may have several possible avenues depending on the claim: an
EEO complaint if they allege discrimination under statutes administered
through the Federal-sector EEO process; an OPM appeal if they allege
partisan-political reasons, marital status, or specified pre-
appointment procedural defects within Sec. 751.101(c); an OSC
complaint if they allege a prohibited personnel practice within OSC's
jurisdiction; and, in some circumstances, an MSPB appeal if they
contend they meet the statutory definition of ``employee'' or assert
another independent statutory appeal right, such as rights related to
military service. Other commenters, including 0342, 0484, 0579, and
0613, characterized this structure as fragmented. OPM disagrees.
The civil service remedial scheme is claim-specific by design. A
structure that directs different legal claims to different expert
forums does not reflect improper fragmentation. Instead, it reflects
how Congress and implementing regulations have long allocated
responsibility for Federal employment disputes. A discrimination claim,
a prohibited-personnel-practice claim, a USERRA or VEOA claim, a
threshold chapter 75 coverage claim, and a limited probationary appeal
under part 751 may arise from related facts, but they are not the same
legal claim. They require different legal standards, different
remedies, and different adjudicatory expertise. The final rule
therefore clarifies, rather than obscures, which forum is responsible
for which issue.
Commenter 0345 argued that assigning discrimination claims to the
EEOC process forces bifurcation, parallel litigation tracks, separate
investigations, and duplicative agency staffing. Commenters 0380, 0414,
0418, 0439, 0447, 0451, and 0516 similarly argued that the rule
unlawfully bifurcates EEO claims contrary to congressional intent.
Commenters 0419, 0425, and 0474 argued that separating claims based on
race, sex, pregnancy, or other protected status from claims of
partisan-political discrimination would create waste, burden claimants,
and create a possible conflict of interest because OPM would be
adjudicating and enforcing its own rules.
OPM does not agree. Congress did not establish a general MSPB
mixed-case appeal right for probationary terminations. The former
mixed-case route existed only because OPM had previously assigned
certain probationary appeals to MSPB by regulation. OPM is now
replacing that regulatory assignment with a narrower OPM process under
Civil Service Rule XI. It is reasonable for OPM to assign
discrimination claims to the EEO process while retaining OPM review
over the limited claims that part 751 preserves.
OPM also does not agree that separate forums will necessarily
produce duplication or inconsistent decisions. The legal inquiries are
distinct. In a part 751 appeal, OPM will determine whether the action
was based on partisan political reasons or marital status, or whether
the agency failed to follow specified procedures for a termination
based in whole or in part on pre-appointment reasons. In an EEO matter,
the agency EEO process and EEOC framework address whether the agency
violated applicable antidiscrimination law. The same factual background
may be relevant to more than one claim, but the legal standards,
decisionmakers, and available remedies differ. Where an employee
chooses to pursue multiple avenues, the employee may submit overlapping
evidence to more than one forum, but that does not make the legal
inquiries duplicative.
OPM further concludes that routing discrimination claims to the EEO
process promotes expertise and consistency. EEOC and agency EEO offices
have specialized responsibility for Federal-sector discrimination
complaints, including investigation, administrative adjudication,
remedies, and coordination with judicial-review rights where
applicable. Requiring OPM
[[Page 49085]]
to adjudicate EEO claims as part of a limited probationary appeal would
complicate and delay the part 751 process, undermine the streamlined
structure of the rule, and risk inconsistent development of
discrimination law outside the forum charged with administering it.
Nor does the rule conceal patterns of discrimination or abuse. EEO
complaints remain available. OSC complaints remain available for
matters within OSC's jurisdiction. Inspector General complaints remain
available where appropriate. MSPB review remains available where an
independent basis for MSPB jurisdiction exists. OPM will also issue
written decisions in part 751 appeals and has committed to make final
merits decisions publicly available, subject to applicable limits
protecting privacy, privileged information, protected personal
information, law-enforcement-sensitive information, and other
information that may not lawfully be disclosed. These mechanisms
preserve transparency and accountability while maintaining the limited
scope of part 751.
Finally, OPM disagrees that its role creates a conflict of
interest. OPM is not the employing agency in appeals filed by employees
of other agencies and does not make the individualized decision to
terminate, not certify, or fail to finalize a particular employee's
appointment. Those decisions are made by the employing agency. OPM's
MSAC adjudicatory function is distinct from OPM's rulemaking and policy
functions, and part 751 requires decisions to be made on the record and
within the limited issues identified in the rule. For appeals filed by
OPM employees, the final rule provides an additional safeguard by
assigning the appeal to an administrative law judge.
Accordingly, OPM declines to revise the rule to provide an MSPB
mixed-case election for probationary and trial period appeals. The
final rule preserves the limited appeal rights historically available
to covered probationary employees, directs discrimination claims to the
EEO process, preserves independent remedies in other forums where
legally available, and provides clearer claim routing for employees,
agencies, and adjudicators.
Commenters 0163, 0172, 0274, 0331, and 0484 argued that by taking
jurisdiction from MSPB and establishing a venue at OPM, appellants will
instead file wrongful termination claims in Article III courts,
unnecessarily and counterproductively fracturing the CSRA's model of
administrative and judicial review of Federal personnel actions.
The Supreme Court has repeatedly explained that Article III courts
lack jurisdiction to hear claims arising under the CSRA, including the
types of claims covered by this rule (probationary appeals). In United
States v. Fausto, the Court explained that ``[a] leading purpose of the
CSRA was to replace the haphazard arrangements for administrative and
judicial review of personnel action, part of the outdated patchwork of
statutes and rules built up over almost a century that was the civil
service system.'' 484 U.S. 439, 444 (1988) (internal quotations and
citations omitted). This comprehensive framework reflects Congress's
deliberate choice to preclude judicial review outside the narrow
circumstances in which the CSRA scheme permits judicial, or
administrative, review.\37\ Nothing in this rule opens the doors to
judicial review by probationers on wrongful termination grounds, and
under this rule, such cases will continue to be dismissed for lack of
jurisdiction.\38\
---------------------------------------------------------------------------
\37\ See, e.g., Elgin v. Dep't of the Treasury, 567 U.S. 1
(2012); Mastriano v. FAA, 714 F.2d 1152 (Fed. Cir. 1983); Sagar v.
Lew, 211 F. Supp. 3d 262 (D.D.C., 2016); Walker v. Merit Sys. Prot.
Bd., 594 F. App'x 984 (Fed. Cir. 2014); Gonz[aacute]lez v.
V[eacute]lez, 864 F.3d 45 (1st Cir. 2017).
\38\ See Tocci v. Napolitano, 791 F. Supp. 2d 944 (D. Or.,
2011); Ahuruone v. U.S. Dep't of the Interior, 312 F. Supp. 3d 1
(D.D.C., 2018); Swartz v. Internal Revenue Serv., 702 F. Supp. 780
(W.D. Mo. 1988); Ladson v. Jue, 2015 WL 3755918 (E.D. Va., 2015);
Chamat v. Paulson, 2009 WL 764989 (S.D. Cal., 2009); Peter B. v.
C.I.A., 620 F. Supp. 2d 58 (D.D.C. 2009); Gonzalez v. Manjarrez,
2013 WL 152177 (W.D. Tex. Jan. 4, 2013), aff'd, 558 F. App'x 350
(5th Cir. 2014); Toro v. Napolitano, 2013 WL 4102158 (S.D. Cal. Aug.
13, 2013); Radakovic v. U.S. Office of Pers. Mgmt., 2012 WL 1900037
(D. Mass. 2012).
---------------------------------------------------------------------------
F. Consistency With Merit System Principles
Commenters 0227, 0035, 0044, 0399, 0425, 0516 and others asserted
that this rule violates the Merit System Principles codified at 5
U.S.C. 2301. OPM disagrees. The Merit System Principles remain fully in
effect and continue to govern Federal personnel management. Nothing in
this rule authorizes an agency to take, or OPM to approve, a personnel
action based on partisan political reasons, marital status, political
affiliation, favoritism, arbitrary conduct, retaliation, or any other
basis prohibited by law. The final rule creates a forum and procedures
for a limited class of regulatory appeals; it does not displace the
Merit System Principles, the prohibited personnel practices in 5 U.S.C.
2302, the jurisdiction of OSC, the jurisdiction of EEOC, or any other
independent statutory protection.
Indeed, the final rule is designed to preserve the merit-based
character of probationary and trial period employment while recognizing
the distinct role of those periods in the civil service system. A
probationary or trial period is part of the examining and assessment
process. During that period, agencies must be able to determine whether
continued employment advances the public interest and the efficiency of
the service. At the same time, agencies may not use that period as a
means to evade the Merit System Principles or to take actions for
unlawful reasons. Part 751 reflects that balance by preserving appeals
alleging partisan political reasons or marital status and by preserving
specified procedural challenges where a termination is based in whole
or in part on conditions arising before appointment.
Commenters 0011, 0070, 0396, 0615 and others asserted that this
rule will be abused to effectuate politically based dismissals. One
commenter points to Starkey v. Dep't of Housing and Urban Development,
2024 M.S.P.B. 6 (2024), as justification for retaining MSPB
jurisdiction to prevent politically based dismissals. OPM has
considered this concern, but does not agree that Starkey supports
reestablishing MSPB as the forum for all probationary appeals.
Starkey demonstrates the importance of preserving a meaningful
avenue to challenge a probationary termination allegedly based on
partisan political reasons. The final rule does exactly that. A covered
appellant who alleges that a termination, noncertification, failure to
certify and finalize an appointment, or covered supervisory or
managerial probationary action was based on partisan political reasons
may appeal that claim to OPM under Sec. 751.101(c). Thus, the final
rule does not eliminate the type of claim at issue in Starkey; it
preserves that claim and assigns it to OPM for adjudication under the
procedures in part 751.
OPM also disagrees that such claims can be fairly resolved only by
MSPB. The relevant question is whether the adjudicatory process allows
the decisionmaker to evaluate the record, require production of
relevant agency materials, consider the appellant's response, develop
the record where necessary, assess material factual disputes, and
provide reasoned decisions. The final rule provides those safeguards.
The agency must submit a response and all documents in the agency
record supporting the action. The appellant may reply. OPM may require
additional information, audit or investigate the agency's action when
[[Page 49086]]
doing so is necessary to determine a material fact, and conduct a
hearing where the written record is insufficient or where a material
credibility dispute makes a hearing necessary and efficient. OPM will
issue written decisions, provide reconsideration and Director review
before finality, and make final merits decisions publicly available
subject to applicable legal limits.
These safeguards are particularly important in cases alleging
partisan political motive. If the written record is sufficient to
resolve the claim, OPM may decide the appeal on that record. If the
record contains material factual gaps, inconsistent explanations, or
credibility issues comparable to those that may arise in a politically
based dismissal case, OPM has authority to obtain additional
information, conduct an audit or investigation, or hold a hearing where
necessary and efficient. The final rule therefore does not require OPM
to accept an agency's explanation at face value, nor does it prevent
OPM from developing the record when the appellant raises a nonfrivolous
and material claim within OPM's jurisdiction.
OPM further rejects the suggestion that agency officials will be
permitted to use the probationary or trial period as cover for
political retaliation or partisan discrimination. Such conduct remains
prohibited. In addition, employees may continue to pursue claims within
OSC's jurisdiction, including prohibited personnel practice claims,
where an independent legal basis for OSC jurisdiction exists. Employees
may also pursue claims in other forums, including EEOC, MSPB,
Inspectors General, or another authorized forum, where an independent
statute or regulation provides jurisdiction.
OPM acknowledges that public confidence in the civil service
depends not only on legal rules but also on transparent and even-handed
administration. For that reason, the final rule requires record-based
adjudication and written decisions, and OPM has committed to making
final merits decisions publicly available, subject to applicable limits
protecting privacy, privileged information, protected personal
information, law-enforcement-sensitive information, and other
information that may not lawfully be disclosed. Public availability of
final merits decisions will allow agencies, employees, representatives,
and the public to assess how OPM applies the prohibition against
partisan-political and marital-status based actions over time.
OPM also has experience administering adjudicatory functions in a
neutral and professional manner, including classification appeals and
other record-based personnel determinations. OPM will apply that
experience in administering part 751. Decisions under this rule must be
based on the administrative record and the issues made appealable by
the regulation, not on political preference, agency convenience, or a
predetermined outcome. For appeals filed by OPM employees, the final
rule adds an additional safeguard by assigning the matter to an
administrative law judge.
Accordingly, OPM declines to revise the rule on the grounds that it
violates the Merit System Principles or will enable politically based
dismissals. The final rule preserves the substantive prohibition
against partisan-political and marital-status based terminations of
probationary period employees. OPM again notes that, if it did not
finalize this rule, probationary employees would have no right to
appeal terminations allegedly undertaken on the basis of political
affiliation. OPM thus sees this rule as reinforcing Merit System
Principles by providing a forum and procedures to adjudicate such
allegations.
G. Representatives, Unions, and Official Time
Commenters 0570 and 0608 questioned OPM's authority to mandate the
procedures provided for in this rule as the sole and exclusive means by
which a probationary or trial period employee may appeal a termination.
For example, they point to the definition of the term ``grievance,''
provided at 5 U.S.C. 7103(a)(9) as basis for Congress mandating
probationary or trial period employees be permitted to challenge
terminations via negotiated grievance arbitration procedures.
OPM disagrees. Courts, interpreting Congress's intent, have long
found that probationary employees are, by statute, treated differently
than those who have been certified following such periods.\39\ Among
the procedures Congress did not grant to probationary employees was the
ability to challenge a removal by grievance. Proposals to extend such
procedures to probationary employees are contrary to law. ``Permitting
probationary employees to grieve removals based on a mere allegation of
violation . . . would eviscerate the entire purpose of the probationary
program.'' NTEU v. FLRA, 737 F.3d 273, 280 (4th Cir. 2013).
---------------------------------------------------------------------------
\39\ See, e.g., 5 U.S.C. 7501(1); Goss v. Dep't of the Air
Force, 131 F. App'x 721, 724 (Fed. Cir. 2005); Mastriano v. FAA, 714
F.2d 1152, 1155 (Fed. Cir. 1983); see also Bante v. Merit Sys. Prot.
Bd., 966 F.2d 647 (Fed. Cir. 1992); Bofill v. Merit Sys. Prot. Bd.,
26 F. App'x 916 (Fed. Cir. 2001).
---------------------------------------------------------------------------
Probationary terminations are not a matter covered under Chapter
71, and placing them within such bounds, thereby opening the door to
use of negotiated grievance procedures to challenge terminations, would
``upset nearly thirty years of FLRA decisions holding that probationary
employees are not permitted under law or regulation to grieve
removals.'' Id. Thus, there is no statutory basis to provide official
time to representatives in connection with probationary appeals. Use of
official time is principally governed by statute. Under 5 U.S.C. 7131,
which forms the basis of the statutory right, official time is
authorized only when a representative is: negotiating a collective
bargaining agreement; participating for or on behalf of a labor
organization in a proceeding before the FLRA; or in connection with any
other matter covered by the FSLMRS. Courts have repeatedly explained
that probationary appeals are not covered by Chapter 71.\40\
---------------------------------------------------------------------------
\40\ See Nat'l Treasury Emps. Union v. Fed. Labor Rels. Auth.,
737 F.3d 273, 280 (4th Cir. 2013) (noting longstanding precedent
that probationary employees may not grieve removals); United States
Dep't of Health & Human Servs. v. FLRA, 858 F.2d 1278, 1283 (D.C.
Cir. 1988) (emphasizing Congress's intent to permit summary
termination during probation); see also United States Dep't of
Justice v. FLRA, 709 F.2d 724, 730 (D.C. Cir. 1983); Bartholomew v.
United States, 740 F.2d 526, 530 (7th Cir. 1984); United States
Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 690 (D.C.
Cir. 2009).
---------------------------------------------------------------------------
Therefore, OPM's rulemaking properly precludes proposals to grant
grievance-arbitration rights to probationary employees. Further,
Commenters misunderstand how the term ``grievance'' is defined under 5
U.S.C. 7103(a)(9). Provisions of the FSLMRS, ``like every Act of
Congress, should not be read as a series of unrelated and isolated
provisions.'' Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995).
This means the definition of ``grievance'' in the FSLMRS is not rigid
or applied to every situation. Instead, when determining what counts as
a grievance, one must exclude any subject matter that is already
excluded due to conflicts with other laws or by governmentwide rules
under 5 U.S.C. 7117(a)(1). Further, Congress ``specifically excluded
probationary employees from the broad definitions of `employee' and
`grievance''' in statute. NTEU v. FLRA, 848 F.2d 1273, 1276 (D.C. Cir.
1988).
Commenters 0055, 0081, and 0110 asserted that the rule would
preclude an appellant from designating a union official as his or her
representative.
[[Page 49087]]
Commenters 0004, 0047, 0153, 0217, 0347, 0599, and others asserted that
an employee is statutorily entitled to select a Federal employee who is
a union official to assist him or her in the preparation of an appeal,
and, in such cases, the selected representative is entitled to claim
official time for work done while in a duty status on behalf of the
employee.
However, the final rule preserves an appellant's ability to select
a representative, including a union representative, subject to the
limitations in Sec. 751.104. The rule does not prevent an employee
from seeking advice, consulting a representative, or being represented
in an appeal under part 751. Nor does it affect official time that may
be independently authorized in other proceedings, such as EEO
proceedings, where a separate legal framework applies.
The rule merely prevents the representative (when such
representative is a Federal employee) from performing representational
functions while in a duty status (including while on official time) or
from claiming agency reimbursement for any expenses incurred while
performing such representational function.
OPM believes that part 751 appeals should not be conducted through
paid representational activity by Federal employees in a duty status.
Part 751 appeals are regulatory probationary-appeal proceedings
established by OPM under Civil Service Rule XI. They are not negotiated
grievance proceedings under chapter 71, and the final rule does not
require agencies to provide official time for the preparation or
presentation of these appeals. Section 7131(d) allows official time for
representational activity in amounts the agency and exclusive
representative agree to be reasonable, necessary, and in the public
interest, subject to applicable law and governmentwide regulation. This
final rule establishes a governmentwide procedural limitation for this
OPM appeal process. Other commenters, such as Commenters 0086, 0283,
0516, 0570, and 0584, asserted that official time is essential to
ensuring that probationary and trial period employees can effectively
challenge improper agency actions. OPM has considered these comments
but declines to revise the rule. The final rule preserves an
appellant's ability to select a representative, including a union
representative, subject to the limitations in Sec. 751.104. It does
not require appellants to proceed without assistance, prohibit union
representatives from advising or representing employees, require
appellants to retain private counsel, or limit representation in
proceedings outside part 751 where official time is independently
authorized. What the final rule does is narrower: it provides that a
Federal employee who serves as a representative in this OPM regulatory
appeal process may not perform that representational work in a duty
status, including on official time under 5 U.S.C. 7131.
OPM disagrees that taxpayer-funded official time is necessary to
make representation meaningful in this limited appeal process. Part 751
appeals are not negotiated grievance proceedings under chapter 71, nor
are they statutory adverse-action appeals under chapter 75. They are
limited regulatory appeals established under Civil Service Rule XI for
employees whose appointments have not yet been finalized. The issues
are correspondingly narrow: partisan-political reasons, marital status,
and specified procedural claims involving terminations based in whole
or in part on conditions arising before appointment. Given that limited
scope, OPM concludes that the public interest is better served by
preserving the right to representation while not requiring agencies to
subsidize preparation or presentation of these appeals through official
time.
Further, official time would be statutorily unavailable to
represent probationary employees in part 751 appeals even if this
regulation were silent on the topic. 5 U.S.C. 7131(d) authorizes
agencies to provide official time for (1) ``any employee representing
an exclusive representative'' and (2) ``in connection with any other
matter covered by this chapter, any employee in an appropriate unit
represented by an exclusive representative.''
Ground (1) is unavailable because a Federal employee who assists a
probationer in a part 751 appeal is not ``representing an exclusive
representative'' within the meaning of the statute. That phrase
describes an employee acting on behalf of the labor organization in its
institutional capacity--that is, performing the representational
functions the FSLMRS assigns to an exclusive representative, such as
negotiating a collective bargaining agreement, processing grievances
under a negotiated grievance procedure, or participating in proceedings
under chapter 71. See 5 U.S.C. 7114(a)(1); AFGE, AFL-CIO, Local 1692
and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force
Base, 3 FLRA No. 47 (1980) (official time under 5 U.S.C. 7131 concerns
activities involving an ``interface'' between the labor organization
and agency management under the Statute, such as negotiations,
grievances, negotiability disputes, and unfair labor practice
proceedings, and preparation for such activities); cf. Bureau of
Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89 (1983) (declining to
extend the benefits associated with official time beyond those Congress
provided in the Statute).
A part 751 appeal involves none of these functions. The
representative's authority in such an appeal derives solely from the
individual appellant's personal designation under Sec. 751.104, not
from the union's status as exclusive representative. Indeed, the FSLMRS
itself distinguishes between representation by an exclusive
representative and an employee's separate right to be represented ``by
an attorney or other representative, other than the exclusive
representative, of the employee's own choosing in any grievance or
appeal action.'' 5 U.S.C. 7114(a)(5)(A). A Federal employee designated
by a probationer under Sec. 751.104 acts in the latter, personal
capacity. The exclusive representative is not a party to a part 751
appeal, has no statutory or regulatory role in the proceeding, and
asserts no institutional interest of its own; part 751 appeals are not
grievances, and the union's chapter 71 representational authorities are
therefore not implicated. This conclusion does not change merely
because the individual the appellant selects happens to hold union
office: an employee's union title does not convert personal
representation of an individual appellant into representation of the
exclusive representative.
Thus, because employees representing colleagues in probationary
appeals are representing the probationer, not the union, such hearings
are not grievances where the union's institutional authorities are
implicated. As a result, ground (1) for official time is unavailable.
As discussed above, courts have consistently held that Chapter 71 of
Title 5, United States Code does not cover appeals of probationary
terminations. See NTEU v. FLRA, 737 F.3d at 279-80; NTEU v. FLRA, 848
F.2d at 1276 (D.C. Cir. 1988); Dep't of Justice v. FLRA, 709 F.2d 724
(D.C. Cir. 1983); NTEU, 67 FLRA 24, 26 (2012), aff'd sub nom. NTEU v.
FLRA, 737 F.3d 273 (4th Cir. 2013). Consequently, probationary appeals
are not ``any other matter covered by'' Chapter 71 and ground (2) is
also unavailable. Commenters do not explain how it would be lawful for
agencies to provide paid official time to represent probationary
employees without statutory authorization under 5
[[Page 49088]]
U.S.C. 7131. The provisions in the final rule that prohibit providing
paid official time for such appeals reflect the statutory limits
Congress placed on provision of official time. Thus, official time for
these appeals would be unlawful regardless of whether this rule
addressed the subject; the rule's prohibition merely makes that pre-
existing statutory limitation explicit.
Commenter 0500 argued that private attorneys are cost prohibitive
and that, without official time, probationary employees will lose a
realistic opportunity to challenge potentially improper or unlawful
terminations. OPM recognizes that representation can assist employees
in presenting their claims. For that reason, the final rule does not
bar representation and does not prevent an appellant from selecting a
union official, attorney, non-attorney representative, or other
permissible representative. But the possibility that some appellants
may prefer representation by a Federal employee during that
representative's duty hours does not create a statutory entitlement to
official time in this proceeding. Employees may represent themselves,
obtain assistance from a union representative outside the
representative's duty status, seek private or pro bono assistance, or
pursue other independently available remedies in the appropriate forum.
Commenter 0500 also contended that restricting a Federal employee
representative from claiming official time for representational work in
a probationary or trial period appeal is arbitrary and capricious under
the APA. OPM disagrees. Section 7131(d) does not create an automatic
entitlement to official time for every form of representational
activity. It permits official time in amounts agreed to by the agency
and exclusive representative, subject to applicable law, rule, and
regulation, and only where the time is reasonable, necessary, and in
the public interest. As discussed above, section 7131(d) expressly does
not authorize official time for matters not covered by Chapter 71 and
not related to representing a labor organization. Thus, official time
is statutorily unavailable under 7131(d) for probationary appeals.
Conforming OPM regulations to statutory limits on agency authority is
neither arbitrary nor capricious.
Further, even if 7131(d) did permit official time for probationary
appeals, this final rule is a governmentwide regulation governing a
specific OPM appeal process. OPM has determined that official time for
the preparation or presentation of part 751 appeals is not warranted
because these appeals concern limited regulatory rights of employees
still serving probationary or trial periods, are not part of the
negotiated grievance process, and are designed to be resolved through a
streamlined written-record procedure.
OPM also concludes that the restriction is reasonably tailored. The
final rule does not regulate representational activity generally; it
applies only to representational functions performed by a Federal
employee representative in connection with an appeal under part 751
while in a duty status. It does not restrict communications on non-duty
time, prevent employees from consulting a union representative, limit
union activity unrelated to a part 751 appeal, or affect official time
that may be available in other proceedings under a separate statutory
or regulatory framework, including EEO proceedings where applicable.
Nor does the rule prevent a union from choosing to assist a
probationary employee; it simply does not require the employing agency
to pay another Federal employee to perform that assistance during duty
hours in this particular regulatory appeal process.
OPM further declines to limit the restriction only to the
``presentation'' of an appeal. Preparation and presentation are both
core representational functions in an adjudicatory proceeding. A rule
that barred official time only for the moment of filing or presenting
an appeal, but allowed official time for all factual development,
drafting, consultation, and strategy related to that appeal, would not
meaningfully serve OPM's objective of maintaining a streamlined and
resource-conscious process. It is also not clear how section 7131(d)
would authorize official time for preparation of an appeal in a matter
not covered by Chapter 71. The final rule therefore applies to both
preparation and presentation of part 751 appeals while preserving the
appellant's ability to obtain representation outside duty status. The
final rule does not prohibit representational communications generally;
it limits the use of duty time for representational functions in this
specific OPM appeal process and in accordance with the limits Congress
placed on negotiated official time.
Commenter 0516 asserted that the rule chills whistleblowing and
protected union activity, and that the restriction on official time
compounds those effects by signaling that employees who speak up will
have little meaningful recourse. OPM disagrees. The final rule does not
alter statutory whistleblower protections, prohibited personnel
practice remedies, OSC jurisdiction, EEO rights, Inspector General
processes, or any other independent remedy available by law. A
protected disclosure, protected union activity, or complaint to an
authorized forum does not lose protection because official time is
unavailable for a Federal employee representative in a part 751 appeal.
Likewise, the rule does not prohibit probationary employees from
engaging in protected union activity during their probationary or trial
periods. It addresses only whether a Federal employee representative
may perform representational work for a part 751 appeal while in a paid
duty status.
Commenter 0516 also contended that the rule would prevent employees
from engaging in union activity during their probationary period by
limiting a representative's use of official time to prepare an appeal
for a removed probationary employee. OPM does not agree that this
conclusion follows. Part 751 appeals are not proceedings under the
FSLMRS, and probationary termination appeals do not become chapter 71
proceedings merely because an appellant selects a union representative.
The final rule therefore does not diminish employees' rights to engage
in protected union activity; it declines to attempt to circumvent the
limits Congress placed on negotiated official time by purporting to
create a taxpayer-funded official-time subsidy for representation in
this limited OPM appeal process.
H. Limitation on Judicial Review
OPM is specifying in Sec. 751.101(e) that ``[a] party cannot
obtain judicial review of a decision under this part.'' It is also
providing in Sec. 751.109(d) that ``[t]here is no further right of
appeal of a final decision of OPM.'' Commenters 0341, 0431, 0440, 0450,
and others contended that, although lawful, restricting judicial review
is unfair.
OPM disagrees. Section 751.101(e) does not withdraw a statutory
right to judicial review. Rather, it reflects the absence of any
statutory right to obtain judicial review of an OPM decision
adjudicating a probationary or trial period appeal under this part.
Congress has provided judicial review in the CSRA where it chose to do
so. For example, 5 U.S.C. 7703 authorizes judicial review of final
orders or decisions of the MSPB. But the decisions issued under this
rule are OPM decisions, not MSPB decisions. Nothing in 5 U.S.C. 7703,
chapter 75, or chapter 77 grants a party a right to obtain judicial
review of an OPM decision issued under a regulatory probationary-appeal
process. Nor does the prior existence of MSPB review
[[Page 49089]]
under former Sec. 315.806 create an independent statutory entitlement
to judicial review. Any judicial review previously available flowed
from OPM's regulatory decision to route certain probationary appeals to
the MSPB, whose final decisions are governed by 5 U.S.C. 7703. OPM has
now exercised its authority, consistent with Civil Service Rule 11.6,
to prescribe a different forum and different procedures for this
limited class of appeals.
This conclusion follows from the structure of the CSRA. 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.'' Am. Fed'n of Gov't Emps. v. Sec'y of the Air Force, 716
F.3d 633, 636 (D.C. Cir. 2013) (alterations, citation, and quotation
marks omitted). 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. See Am. Fed'n
of Gov't Emps. v. Trump, 929 F.3d 748, 757 (D.C. Cir. 2019).
That structure is not accidental. The CSRA's review scheme is both
``comprehensive and exclusive.'' Grosdidier v. Broad. Bd. of Govs., 560
F.3d 495, 497 (D.C. Cir. 2009). 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.'' Nyunt v. Broad. Bd. of Gov., 589 F.3d 445, 448 (D.C.
Cir. 2009) (cleaned up). It is ``exclusive,'' meanwhile, in that ``[i]t
constitutes the remedial regime for Federal employment and personnel
complaints.'' Id. The CSRA's review scheme is exclusive even when ``the
CSRA provides no relief,'' and in fact, ``precludes other avenues of
relief.'' Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004). In
other words, ``the CSRA is the exclusive avenue for suit even if the
plaintiff cannot prevail in a claim under the CSRA.'' Grosdidier, 560
F.3d at 497. ``Congress designed the CSRA's remedial scheme with care,
`intentionally providing--and intentionally not providing--particular
forums and procedures for particular kinds of claims.''' Id. (quoting
Filebark v. Dep't of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009)).
In United States v. Fausto, the Court held that the absence of CSRA
review rights for a covered category of excepted service employees was
not a gap to be filled by another remedial statute, but a manifestation
of Congress's considered judgment about the scope of review. 484 U.S.
439 (1988). Similarly, in Elgin v. Dep't of the Treasury, the Court
held that the CSRA supplied the exclusive review scheme for covered
employees challenging covered adverse actions, even where the employees
raised constitutional claims. 567 U.S. 1 (2012). These decisions
confirm that the question is not whether judicial review might be
desirable as a policy matter, but whether Congress has provided it for
the action, employee, claim, and forum at issue.
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. See 5 U.S.C. 7511(a)(1). The
probationary period has long been treated as an extension of the
examining process, and Congress generally withheld ordinary chapter 75
adverse-action appeal rights from employees who have not completed the
applicable service or status requirements.
Courts have repeatedly recognized that probationary employees'
appeal rights are ``extremely limited'' and that there is no statutory
basis for ordinary MSPB jurisdiction over probationary removals.
Mastriano, 714 F.2d at 1155. The former MSPB appeal right for
probationary employees was regulatory, not statutory. OPM's decision to
provide a limited OPM administrative appeal therefore does not trigger
the judicial-review provisions applicable to MSPB decisions, nor does
it require OPM to create a new layer of judicial review by regulation.
Commenters 0341, 0371, and 0450 suggested that OPM's decisions
cannot be final without court review, and that the ability to challenge
agency decisions in court serves as a check on agency mistakes.
Commenter 0483 added that denying access to Article III courts may also
be unconstitutional since the Supreme Court has held that judicial
review provides a forum for claims after administrative exhaustion
requirements have been met by litigants. Commenters 0410 and 0483
asserted that the Supreme Court has recognized a presumption in favor
of judicial review, having rejected arguments in cases like Kucana v.
Holder that such a right may only be stripped by express exclusion in
statute. See Kucana v. Holder, 558 U.S. 233 (2010). Other commenters,
like 0255 and 0444, asserted that there is a generalized right of
judicial review.
Unlike the circumstances cited in Kucana, the CSRA does not
establish a right to judicial review for any aspect of the
administrative process for resolving the probationary or trial period
assessment. To the extent that OPM previously delegated this review
authority to the MSPB, whose decisions are in turn subject to judicial
review by the Federal Circuit, this grant of review by OPM is best
described as an act of grace. In hindsight, rather than serving as an
efficient way to resolve disputes arising during the probationary
period, OPM believes that this grant unduly restricted agencies'
ability to conduct probationary assessments by introducing the
possibility of multiple rounds of administrative review and subsequent
judicial review in a Federal appellate court.
While the CSRA does include a comprehensive remedial scheme, which
may include judicial review, this review is limited. The CSRA provides
that ``[t]he reviewable agency actions are removal, suspension for more
than 14 days, reduction in grade or pay, or furlough for 30 days or
less.'' Elgin, 567 U.S. at 5-6. But courts have repeatedly dismissed a
litany of other actions arising under the CSRA (including, but not
limited to, those relating to the APA). For example, in United States
v. Fausto, 484 U.S. 439 (1988), the Court said ``the absence of
provision for . . . employees to obtain judicial review is not an
uninformative consequence of the limited scope of the statute, but
rather manifestation of a considered congressional judgment . . . This
conclusion emerges not only from the statutory language, but also from
what we have elsewhere found to be an indicator of nonreviewability,
the structure of the statutory scheme.'' Similarly, in Zummer v.
Sallet, 37 F.4th 996 (5th Cir. 2022), the court held the CSRA prohibits
district courts from hearing claims seeking to reverse suspensions and
terminations. Indeed, for decades, courts have consistently held ``that
it would be inappropriate . . . to supplement [the CSRA] regulatory
scheme with a new judicial remedy.'' Bush v. Lucas, 462 U.S. 367, 368
(1983). See also Krafsur v. Davenport, 736 F.3d 1032, 1034 (6th Cir.
2013) (``The [CSRA] spells out in painstaking detail the path an
employee must follow if he wants to challenge a prohibited personnel
practice''); Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005)
(Roberts, J.); Dotson v. Griesa, 398 F.3d 156, 163 (2d Cir. 2005)
(``the CSRA creates an integrated scheme of
[[Page 49090]]
administrative and judicial review for adverse employment actions . . .
That scheme . . . affords no administrative or judicial review to
judicial branch employees'') (internal quotation marks omitted); Pathak
v. Dep't of Veterans Aff., 274 F.3d 28 (1st Cir. 2001) (holding the
CSRA stripped the district court of subject matter jurisdiction to
consider a suspension of less than 14 days); Ryon v. O'Neill, 894 F.2d
199, 204 (6th Cir. 1990) (``In short, the text of the CSRA, the
structure of the review it establishes, and the legislative history of
the Act, all lead ineludibly to the conclusion that Congress intended
review of agency reassignment decisions to be confined to the specific
procedures set out in the text of the CSRA''); and Yokum v. U.S. Postal
Serv., 877 F.2d 276 (4th Cir. 1989) (holding the CSRA ``precludes
judicial review of administrative personnel decisions adverse to the
interests of nonpreference eligible postal workers'') (internal
quotations omitted).
This is because the ``CSRA nowhere grants any employee, whether in
the excepted or competitive service, the right to bring an action in
Federal district court.'' Galvin v. F.D.I.C., 48 F.3d 531 (5th Cir.
1995). ``It is well established that the appeal rights of a
probationary employee are extremely limited.'' Mastriano, 714 F.2d at
1155. In fact, ``Congress excluded probationary employees from the
definition of `employee' for most adverse action purposes.'' Piskadlo
v. Veterans' Administration, Merit Sys. Prot. Bd., 669 F.2d 82, 83 (1st
Cir. 1982). Further, ``[t]he language of the current statute
establishes that Congress clearly intends review of the termination of
probationary employees to be more limited than that of other
employees.'' Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 650 (Fed.
Cir. 1992). Put plainly, Congress intended to provide more review
rights to regular employees than probationary employees. It does not
stand to reason, therefore, that when taking great pains to, ``in great
detail,'' prescribe the avenues of redress available under the CSRA,
``including the availability of administrative and judicial review,''
Fausto, 484 U.S. at 443, Congress intended to provide probationary
appellants greater access to Article III judicial review than it
provided to non-probationary employees.
Commenters' reliance on the general presumption favoring judicial
review is misplaced in this context. OPM recognizes that courts
ordinarily presume that agency action is subject to judicial review.
But that presumption may be overcome by the structure and purpose of a
comprehensive statutory scheme. The CSRA is such a scheme. Unlike the
statute at issue in Kucana, this is not a case in which OPM is
attempting to make an otherwise reviewable statutory claim unreviewable
merely by labeling the matter discretionary by regulation. Instead,
Congress enacted a detailed personnel-review scheme that provides
judicial review for some personnel actions, employees, and forums,
while withholding it for others. The absence of judicial review here is
therefore not an ``extraordinary delegation'' to OPM to insulate its
own decisions from review; it is a consequence of Congress's decision
not to provide judicial review for probationary appeal decisions of
this type.
OPM also disagrees that additional judicial review is necessary to
make the process fair. Fairness must be assessed in light of the
limited status of probationary and trial period employees, the narrow
issues appealable under this part, and the government's strong interest
in preserving the probationary and trial period as a meaningful
extension of the examining process. The final rule provides a neutral
administrative forum within OPM; requires an agency response and
production of the agency record; allows the appellant to reply; permits
representation; authorizes OPM to audit or investigate where necessary
to determine an issue of material fact; permits a hearing where the
written record is insufficient or credibility issues make one necessary
and efficient; provides written decisions; authorizes appropriate
corrective relief, including back pay where available; allows
reconsideration; permits Director review before finality; and requires
publication of final merits decisions, subject to applicable limits. In
OPM's judgment, those procedures are adequate and proportionate for the
limited regulatory appeal rights at issue, ensuring a fair process for
an appellant.
Nor does this rule foreclose independent remedies that Congress or
another lawful authority has made available outside part 751. Section
751.101(e) expressly preserves the ability of an employee to file a
complaint, appeal, or other matter within the jurisdiction of the EEOC,
an Inspector General, the MSPB, or OSC where an independent legal basis
for such jurisdiction exists. Employees may continue to pursue
discrimination claims through the EEO process and may obtain judicial
review where the applicable civil-rights statutes and EEOC regulations
authorize it. Employees may also pursue claims before OSC, MSPB, or
another forum to the extent Congress has independently authorized such
claims. What the final rule does not provide is a further
administrative appeal or judicial review of OPM's own final decision
under this limited probationary-appeal process.
Commenters also invoked Wesson v. Jenkins \41\ and McLaughlin
Chiropractic Associates, Inc. v. McKesson Corp.\42\ to argue that OPM
may not make its part 751 decisions final without judicial review. OPM
disagrees. Neither decision addresses the CSRA, probationary
employment, OPM's authority to prescribe probationary-appeal
procedures, or the availability of judicial review of an OPM decision
issued under a regulatory civil service appeal process.
---------------------------------------------------------------------------
\41\ 2020 WL 1066531 (N.D. Ohio Mar. 5, 2020), aff'd sub nom.
Wesson v. Shoop, 17 F.4th 700 (6th Cir. 2021).
\42\ 606 U.S. 146 (2025).
---------------------------------------------------------------------------
The facts and applicable legal requirements of both cases also
diminish their relevancy. Wesson is a Federal habeas case involving
collateral review of an Ohio capital conviction under 28 U.S.C. 2254.
It says nothing about the CSRA's integrated remedial scheme for Federal
personnel actions or the scope of review available to probationary
Federal employees.
McLaughlin is likewise inapposite. There, the Supreme Court
considered whether the Hobbs Act required a district court, in a
private Telephone Consumer Protection Act enforcement action, to treat
an FCC statutory interpretation as binding. The Court held that the
Hobbs Act did not bind district courts in later civil enforcement
proceedings because the Hobbs Act was silent as to that distinct
enforcement-proceeding question. The Court's analysis turned on the
structure of pre-enforcement review statutes and the absence of
language or statutory context precluding later review in that specific
setting.
The CSRA is materially different. This rule does not involve a
civil enforcement proceeding, a private damages action, or a regulated
party defending against liability. It involves a Federal employment
dispute governed by the CSRA and Civil Service Rule XI. Unlike the
Hobbs Act provision at issue in McLaughlin, the CSRA is not silent
about review of Federal personnel actions. It creates a detailed and
integrated system that specifies which employees may obtain
administrative review, which actions are appealable, which forum may
hear the appeal, and when judicial review is available.
Accordingly, OPM concludes that adding judicial review to this
regulatory
[[Page 49091]]
process would effectively recreate the multi-layered adjudicatory
structure that E.O. 14284 directed OPM to replace, and would undermine
the efficiency and accountability benefits of resolving probationary
appeals through a limited administrative process tailored to the narrow
issues historically available to probationary appellants. Further, OPM
cannot unilaterally subject its decisions to judicial review; that
takes an act of Congress. No provision in the CSRA provides
jurisdiction to Federal courts to review OPM decisions in probationary
appeals. OPM cannot waive the Federal Government's sovereign immunity
by regulation without Congressional authorization. OPM therefore
declines to revise the final rule to provide any further administrative
appeal or judicial review of final OPM decisions under part 751.
I. Reliance Interests, Recruitment, Retention, and Workforce Concerns
Commenter 0198 argued that Federal employees serving probationary
or trial periods have a reliance interest in having appeals concerning
terminations heard by MSPB. The commenter also argues that this rule
will undermine the American public's reliance on a nonpartisan civil
service.
OPM has considered these reliance concerns but concludes that they
do not warrant reestablishing MSPB as the forum for these limited
regulatory appeals. The reliance interest asserted by Commenter 0198
concerns a forum and set of procedures created by regulation, not a
statutory entitlement to MSPB adjudication. Congress did not provide
most probationary employees with the same statutory adverse-action
appeal rights available to employees who have completed the applicable
period of service. The former MSPB appeal route existed because OPM
regulations assigned a narrow category of probationary appeals to MSPB.
Because that forum was regulatory, OPM may prospectively revise it,
provided OPM acknowledges reliance concerns and gives a reasoned
explanation for the change.
OPM has done so here. The final rule is prospective and does not
disturb terminations effected before the effective date of the rule,
pending appeals, or final decisions issued under the prior framework.
It also preserves the core substantive protections historically
available to covered probationary appellants: claims that the action
was based on partisan political reasons or marital status, and
specified procedural claims for terminations based in whole or in part
on conditions arising before appointment. The rule therefore does not
leave covered employees without a remedy for the historically
recognized grounds of probationary appeal; it changes the adjudicatory
forum and procedures for those claims.
Further, employees currently serving an initial probationary period
in the competitive service do not have a cognizable reliance interest
in the Merit Systems Protection Board as the forum for probationary
termination appeals, because any such expectation was extinguished when
the President issued Executive Order 14284 over a year ago. That order
rendered inoperative and without effect the prior regulatory framework
in subpart H of part 315 that had designated MSPB as the venue for
probationary appeals. Once those regulations were revoked, any prior,
purely regulatory expectation that MSPB would hear probationary appeals
ceased to exist, and probationary employees were on notice that
continued service during the probationary period did not carry with it
a right to MSPB adjudication of termination decisions. OPM notes that
every competitive service employee currently serving their one-year
probationary period was hired after the issuance of Executive Order
14284. Accordingly, they had no expectation of limited MSPB
probationary appeals as those appeals did not exist when they were
hired.
In addition, even if E.O. 14284 had not rescinded the prior MSPB
forum for competitive service employees serving an initial probationary
period, OPM would still find any reliance interests in that forum to be
limited. Probationary and trial period employees enter service with
notice that their appointments have not yet been finalized and that the
probationary or trial period is part of the examining and assessment
process. The historical appeal rights available during that period have
been narrow. OPM does not discount that some applicants and employees
may value the prior MSPB forum, but OPM does not believe that employees
generally accepted or continued Federal employment principally in
reliance on the availability of MSPB review for the limited grounds
historically available to probationary appellants. In any event, any
such reliance is outweighed by the benefits of establishing a
streamlined process better tailored to the limited regulatory rights at
issue.
Nor does the final rule undermine public reliance on a nonpartisan
civil service. The rule does not authorize politically based
dismissals, favoritism, retaliation, discrimination, or arbitrary
personnel action. The Merit System Principles, prohibited personnel
practices, EEO protections, whistleblower protections, OSC
jurisdiction, Inspector General authorities, and other independent
accountability mechanisms remain in effect. The final rule also
expressly preserves appeals alleging partisan political reasons or
marital status. In addition, OPM will issue written decisions and has
committed to making final merits decisions publicly available, subject
to applicable legal limits. Public availability of those decisions will
promote transparency, consistency, and public accountability in OPM's
administration of part 751. Rather, OPM expects the final rule to
strengthen the nonpartisan nature of the civil service. This is because
it creates an appeals process to adjudicate allegations of
discrimination based upon political affiliation. Currently no such
process exists. If OPM were to decline to finalize the rule
probationary employees would remain generally unable to appeal
terminations based upon political discrimination.\43\
---------------------------------------------------------------------------
\43\ OPM notes that other forums available for contesting
discrimination based upon political affiliation, such as the Office
of Special Counsel or an Inspector General report, permit employees
to file a complaint but do not provide a direct right of appeal, as
this rule does.
---------------------------------------------------------------------------
Several commenters also argued that the rule will harm recruitment
and retention by creating an actual or perceived degradation of due
process. Commenters asserted that the rule could reduce the
Government's ability to compete with the private sector for top talent;
make it harder to fill specialized positions; increase the need to
train replacement employees; discourage new ideas and viewpoints; deter
employees from moving into better-fitting positions or management
roles; and, in some cases, harm national security by making it harder
to retain highly trained employees.
OPM has considered these concerns but does not agree that they
justify retaining the prior MSPB process. The rule should be evaluated
in light of what it actually does. It does not reduce the rights of
employees who have completed probationary or trial periods and obtained
the statutory protections associated with continued service. It does
not eliminate EEO rights, whistleblower protections, prohibited-
personnel-practice remedies, veterans' rights, or other independent
statutory remedies. It does not eliminate all appeal rights for covered
probationary employees. And it does not authorize agencies to separate
employees for unlawful reasons. Rather, it expands
[[Page 49092]]
employees' rights by creating a focused adjudicatory process for a
narrow category of appeals by employees whose appointments have not yet
been finalized.
OPM further concludes that a clear and effective probationary
system supports, rather than undermines, recruitment and retention. The
Federal Government's ability to attract and keep high-performing
employees depends not only on procedural protections but also on public
trust, mission effectiveness, performance accountability, and the
ability of agencies to build strong teams. A system that makes the
probationary or trial period meaningful helps agencies identify
employees who should receive finalized appointments, address poor fit
or inadequate performance early, and avoid imposing long-term burdens
on coworkers, supervisors, agency missions, and the public. High-
performing employees benefit from a workplace in which performance
matters and agencies can act before performance or conduct problems
become entrenched.
OPM does not agree that the Government's prior investment in
recruiting, onboarding, or training a probationary employee means the
appointment should be finalized regardless of the agency's assessment.
Those investments are important, but they are not dispositive. The
purpose of the probationary and trial period is to determine, before an
appointment becomes final, whether continued employment advances the
public interest, the agency's mission, and the efficiency of the
service. Treating sunk costs as a reason to retain an employee whose
continued service does not satisfy that standard would defeat the
purpose of the probationary system and would not serve agencies,
employees, or the public.
OPM also does not agree that the final rule will deter talented
applicants from Federal service. Applicants who seek a career in public
service should expect both merit-based protections and meaningful
performance accountability. The final rule advances both interests. It
establishes limited appeal rights for unlawful or procedurally
defective actions, provides a written-record process with agency record
production and appellant reply, permits OPM to require additional
information and conduct audits, investigations, or hearings where
necessary and efficient, provides reconsideration and Director review
before finality, and requires public availability of final merits
decisions subject to applicable legal limits. At the same time, it
avoids importing procedures designed for tenured adverse-action appeals
into the distinct probationary and trial period context.
OPM recognizes the importance of recruiting and retaining talented
employees in specialized, mission-critical, and national-security-
related positions. But OPM does not believe that resuscitating the
prior MSPB forum for narrow probationary appeals is necessary to
accomplish that objective. Agencies can and should recruit by
communicating the value of Federal service, the importance of mission,
the protections that continue to apply, and the expectation that
employees will demonstrate during the probationary or trial period that
continued service is in the public interest. A transparent,
predictable, and timely appeal process supports that message better
than a more complex process that is disproportionate to the limited
rights at issue.
Accordingly, OPM concludes that the asserted reliance, recruitment,
and retention concerns do not outweigh the benefits of the final rule.
The rule strengthens the merit-based civil service by providing limited
appeals, maintains the substantive protections historically available
to covered probationary appellants, leaves independent statutory
remedies intact, increases transparency through public final merits
decisions, and establishes a streamlined adjudicatory process that
better reflects the limited status of employees whose appointments have
not yet been finalized.
J. Major Questions Doctrine
Commenters 0206 and 0207 asserted that this rule violates the major
questions doctrine, suggesting the substance of this rule concerns an
issue of vast ``economic and political significance'' and the ``history
and the breadth of the authority that [the agency] has asserted''
creates a question as to whether the CSRA provides the authority
asserted, citing the Supreme Court's decision in West Virginia v. EPA,
597 U.S. 697, 721 (2022).
Commenters' reliance on West Virginia v. EPA is misplaced. The
major questions doctrine applies only in ``extraordinary cases'' where
the history and breadth of the authority asserted, together with the
economic and political significance of that assertion, give a court
reason to hesitate before concluding that Congress delegated the
authority claimed. Id. at 721-24. This final rule does not present such
a case. In West Virginia, EPA asserted novel authority under section
111(d) of the Clean Air Act to require generation shifting across the
electric-power sector. The Court emphasized that EPA's approach would
restructure the national mix of electricity generation, impose billions
of dollars in compliance costs, affect electricity prices, require
coal-plant retirements, eliminate jobs, and require EPA to balance
national energy-policy considerations outside its traditional
expertise. Id. at 714-16, 728-30.
This rule is materially different in both scope and statutory
footing. It concerns the internal administration of a narrow class of
Federal personnel appeals involving employees serving probationary or
trial periods and certain supervisory or managerial probationary
actions. It does not regulate private conduct, impose compliance
obligations on the public, restructure any industry, or resolve a
question of nationwide economic or social policy. OPM estimates the
rule will result in first-year governmentwide costs of approximately
$2.75 million and recurring annual governmentwide costs of
approximately $1.5 million. Those figures are not remotely comparable
to the economic consequences at issue in West Virginia, but the
distinction is not merely one of dollars. OPM also does not claim an
unheralded power from a vague, ancillary statutory phrase. Congress
authorized the President to prescribe rules, regulations, and
directives governing probationary periods before certain Federal
appointments become final; assigned OPM responsibility for executing,
administering, and enforcing civil service rules and regulations and
advising the President on matters including tenure and separation; and
provided that MSPB appeals exist only for actions made appealable to
the Board by ``law, rule, or regulation.'' 5 U.S.C. 1103(a)(5), (a)(7),
3301, 3302, 3321(a), 7701(a). Further, OPM's predecessor agency, the
Civil Service Commission, formerly exercised precisely this authority
in hearing limited appeals of probationary terminations.
Congress also did not give probationary and trial period employees
the same statutory adverse-action appeal rights provided to covered
employees under chapter 75. Chapter 75's definition of ``employee''
generally excludes individuals serving probationary or trial periods
under initial appointments, and courts have long recognized that MSPB
jurisdiction over probationary termination appeals was created by OPM
regulation rather than by an independent statutory right. See 5 U.S.C.
7511(a)(1); Mastriano, 714 F.2d at 1155; Bante, 966 F.2d at 650.
[[Page 49093]]
Accordingly, this rule creates a forum and procedures for a limited
regulatory appeal that OPM previously channeled to the MSPB. It does
not assert the type of transformative, novel authority of vast economic
and political significance that triggered the major questions doctrine
in West Virginia. In any event, the rule rests on clear civil service
authorities and longstanding regulatory practice.
K. Length of Comment Period
OPM received several comments, including Commenter 0013, that the
proposed rule violated the APA. Specifically, this Commenter argued the
30-day comment period following the proposed rule was unlawfully short
in violation of the APA. The Commenter based this argument on multiple
sources: first, the APA's mandate that an ``opportunity to
participate'' on proposed rules be provided following a notice of
proposed rulemaking; and E.O.s 12866 and 13563, which specify that
comment periods should ``generally'' be at least 60 days.
OPM rejects the argument that the comment period was inadequate as
a matter of law or policy. The APA requires agencies to provide
interested persons an opportunity to participate in rulemaking through
submission of written data, views, or arguments. OPM provided that
opportunity. As several appellate courts have held, a 30-day comment
period is generally the minimum needed to comply with the APA.\44\
---------------------------------------------------------------------------
\44\ See Chamber of Com. of the U.S. v. U.S. Sec. & Exch.
Comm'n, 85 F.4th 760, 779 (5th Cir. 2023) (``the APA generally
requires only a minimum thirty-day comment period.''); Riverbend
Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992)
(``Although the APA mandates no minimum comment period, some window
of time, usually thirty days or more, is . . . allowed for
interested parties to comment.''); Nat'l Lifeline Ass'n v. Fed.
Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (``When
substantial rule changes are proposed, a 30-day comment period is
generally the shortest time period sufficient for interested persons
to meaningfully review a proposed rule and provide informed
comment.'').
---------------------------------------------------------------------------
The Commenter's reliance on E.O. 12866 and E.O. 13563 is similarly
misplaced. These orders only mandate that comment periods should
``generally'' be at least 60 days. The policy rationale for that
mandate is that stakeholders should have adequate opportunity to
meaningfully participate in the notice-and-comment process. Concerning
the present rulemaking, OPM received 632 comments, offering
perspectives on many aspects of the proposed rule. OPM received
hundreds of comments addressing the rule's legal basis, policy
justification, procedural design, effect on employees and agencies,
relationship to MSPB, relationship to EEOC and OSC processes, possible
alternatives, and potential consequences for the civil service. The
breadth and specificity of the comments confirm that interested parties
had a meaningful opportunity to comment. Factually, it cannot be said
that the comment period was insufficient to allow for meaningful
feedback on the proposed rule given the feedback that OPM did receive.
Further, in the years since those executive orders were issued,
comment periods have not infrequently been shorter, often 30 or 45
days. This is, in part, because agencies, working with the White House,
have a great deal of discretion in shortening the comment period based
on the facts of the situation. As courts have repeatedly held,
``[e]xecutive [o]rders are not judicially enforceable.'' \45\ That is,
as a general matter, executive orders and other White House guidance on
the regulatory process bind executive agencies only as a matter of the
internal management of the executive branch. Thus, several Federal
courts have specifically held that there is no legal requirement that
agencies comply with the requirements specified in E.O.s 12866 and
13563.\46\
---------------------------------------------------------------------------
\45\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573
(D.C. Cir. 2025) (citing Marin Audubon Soc'y v. Fed. Aviation
Admin., 121 F.4th 902, 913 (D.C. Cir. 2024)); see also Chen Zhou
Chai v. Carroll, 48 F.3d 1331, 1338-39 (4th Cir. 1995) (no private
right of action to enforce executive order unless issued pursuant to
a statutory mandate or delegation by Congress).
\46\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309,
1326-27 (11th Cir. 2021) (holding that E.O. 12866 and E.O. 13563
specifically are not judicially enforceable); Miller v. Garland, 674
F.Supp.3d 296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604,
2024 WL 4973474 (4th Cir. July 30, 2024) (holding that E.O. 12866 is
not judicially enforceable).
---------------------------------------------------------------------------
Accordingly, the 30-day comment period provided by OPM was not
``truncated'' but was instead well within the APA's procedural
requirements and the period that should be considered reasonable in
light of the President's executive order compelling agency action.
OPM also declines to reopen the comment period based on objections
to the earlier rule implementing E.O. 14284 and Civil Service Rule XI.
This rulemaking concerns the circumstances and procedures for covered
appeals under part 751. To the extent commenters addressed Rule XI or
the June 2025 rule, OPM has considered those comments where relevant to
the design of the part 751 appeal process. But this rulemaking is not
the vehicle for reopening all issues resolved in the prior rulemaking.
OPM has provided notice and an opportunity to comment on the procedural
rule now being finalized.
L. Comments From Federal Agencies
Federal agency commenters (0302, 0324, 0355, 0401, 0402, 0428,
0446, and 0508) supported the proposed rule. These commenters generally
stated that probationary and trial periods are intended to allow
agencies to determine whether employees should continue in Federal
service before receiving the full procedural protections associated
with completed probationary or trial service. The commenters stated
that substituting a single appeal to OPM for MSPB appeals would better
reflect the limited scope of these appeals and would promote more
efficient, predictable, and timely resolution.
Several commenters stated that the current appeals process can
discourage supervisors from taking timely action during probationary or
trial periods. Commenters 0324, 0355, 0402, 0428, 0446, and 0508 stated
that litigation risk, procedural burden, or uncertainty may lead
supervisors to tolerate poor performance or misconduct, reassign
employees, or allow employees to pass beyond the probationary or trial
period without appropriate action. Commenters 0302 and 0401 also stated
that many probationary appeals are dismissed for lack of jurisdiction
or otherwise do not reach the merits, while still requiring agency
resources.
Commenters 0324, 0355, 0446, and 0508 raised concerns about delay
in MSPB proceedings, including delay associated with periods when MSPB
lacks a quorum. Commenter 0446 described an appeal that remained
unresolved for more than six years, and Commenter 0508 stated that
delays can increase potential back pay exposure. Commenters 0324, 0355,
0401, 0402, 0446, and 0508 stated that OPM is an appropriate forum
because of its Federal human resources role, adjudicatory experience,
and ability to administer a centralized process.
Commenters further stated that the rule would support
accountability, morale, and mission effectiveness by enabling agencies
to address performance, conduct, and suitability concerns during the
probationary or trial period. Commenter 0446 also recommended that OPM
make final decisions publicly available and searchable online.
OPM agrees with commenters that probationary and trial periods
serve an important evaluative function and that the appeal process for
the limited matters covered by this rule should be efficient,
predictable, and consistent
[[Page 49094]]
with that function. OPM also agrees that routing these appeals to OPM
will reduce unnecessary procedural burden, conserve MSPB resources, and
promote timely resolution while preserving the employee appeal rights
addressed in the rule. OPM is finalizing the rule to establish a single
OPM appeal process for the matters covered by the rule.
OPM agrees with Commenter 0446 that public availability of final
merits decisions will promote transparency, consistency, and
predictability in the administration of these appeals. Accordingly, the
final rule includes a publication provision at Sec. 751.109(e).
Subject to applicable legal limits, including requirements protecting
privacy, privileged information, protected personal information, law-
enforcement-sensitive information, and other information that may not
lawfully be disclosed, OPM will maintain a publicly accessible website
containing final decisions issued under this part that address a
party's claim on the merits.
IV. Section-by-Section Analysis
Part 11--Probationary and Trial Periods
OPM is adding part 11 to the amendatory instructions and list of
subjects because this final rule includes conforming and corrective
amendments to Civil Service Rule XI. These amendments are being made in
the same rulemaking because they concern the same probationary and
trial period framework that governs the appeal procedures established
in new part 751.
OPM is correcting Sec. 11.2(a)(2) by replacing the phrase
``Reinstatement Priority List'' with ``Reemployment Priority List.''
This is a technical correction. The applicable list is the Reemployment
Priority List, and the amendment corrects the terminology used in the
regulation without changing the substantive operation of Sec. 11.2.
This correction conforms Sec. 11.2(a)(2) to the terminology used
throughout OPM's existing placement regulations (under 5 CFR part 330,
subpart B) and guidance, replacing an inaccurate label with the correct
regulatory name of the existing program.
OPM is also amending Sec. 11.5 to incorporate into the CFR certain
forward-looking procedures established by E.O. 14284 for review during
initial probationary and trial periods. Specifically, paragraphs (b)-
(d) of Section 5 of E.O. 14284 set forth certain procedures for
agencies to follow as part of their certification process for continued
employment of employees serving probationary or trial periods. In the
proposed rule, OPM specifically invited comment on whether and how Rule
XI should be modified to expressly incorporate those provisions.
Although these provisions are already in effect and controlling,
these requirements from E.O. 14284 are not currently reflected in Civil
Service Rule 11. Therefore, OPM amends Rule 11 to incorporate these
provisions into the regulations to provide administrative convenience
and greater clarity for employees, supervisors, agency officials, and
human resources practitioners. OPM has structured the new requirements
as paragraphs (e)-(h) in 5 CFR 11.5 and redesignated existing
paragraphs accordingly to conform to CFR drafting conventions.
New Sec. 11.5(e) requires each agency head to designate, in
writing, one or more agency officials responsible for evaluating the
continued employment of employees serving initial probationary or trial
periods. This provision ensures that agencies identify accountable
officials before the end of the probationary or trial period and that
those officials are positioned to assess the needs and interests of the
agency, the organizational goals of the agency or the Federal
Government, and the efficiency of the service.
New Sec. 11.5(f) requires the designated official to meet with the
employee at least 60 days before the end of the employee's initial
probationary or trial period. The meeting requirement is intended to
make the end-of-period assessment a meaningful management judgment
rather than a purely ministerial personnel action.
New Sec. 11.5(g) requires the agency head or designated official,
within 30 days before the end of the employee's initial probationary or
trial period, to determine whether to finalize the employee's
appointment or terminate the employee's service. OPM is adding this
provision to align the regulatory text with the structure of Civil
Service Rule XI, under which the agency must make an affirmative
determination before the appointment is finalized.
New Sec. 11.5(h) requires the agency head or designated official
to certify in writing, before finalizing the appointment, that the
employee's continued employment will advance the public interest. This
certification requirement is central to Civil Service Rule XI. It
confirms that completion of a probationary or trial period is not
merely the result of the passage of time, but instead reflects an
affirmative agency determination that finalizing the appointment is
warranted.
OPM is redesignating former paragraphs (e) through (g) of Sec.
11.5 as paragraphs (i) through (k). The redesignation is necessary to
accommodate the new procedural provisions added as paragraphs (e)
through (h).
OPM is not codifying as a standing CFR requirement the one-time
provision in E.O. 14284 requiring agency heads, within 15 days of the
order, to identify employees whose initial probationary or trial
periods ended 90 days or more from the date of the order. That
directive was time-limited and implementation-specific. The permanent
CFR text instead codifies the continuing obligations that agencies must
follow for employees serving initial probationary or trial periods on
an ongoing basis.
Part 230--Organization of the Government for Personnel Management
OPM is revising Sec. 230.402(f) to conform the appeal procedures
for emergency-indefinite employees to new part 751. The final rule
clarifies that the first year of service of an emergency-indefinite
employee is a probationary period and that an agency may terminate the
appointment during that period. Where an emergency-indefinite employee
is entitled to appeal a termination during the probationary period, the
applicable procedures are those set forth in part 751. This conforming
change ensures that the appeal route for emergency-indefinite employees
is consistent with the new OPM-administered probationary appeal
process.
Part 315--Career and Career-Conditional Employment
OPM is revising Sec. 315.201(a) to conform the career-conditional
employment regulations to Civil Service Rule XI. The revised text
provides that 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. This amendment clarifies that the probationary-
period requirement for career and career-conditional employees is now
governed by Civil Service Rule XI in part 11, while preserving the
existing career-tenure service requirement.
OPM is also revising Sec. 315.908(b) to replace MSPB with OPM as
the forum for appeals by supervisors or managers assigned to
nonsupervisory or nonmanagerial positions for failure to complete a
supervisory or managerial probationary period. The appealable issues
remain limited to allegations that the agency action was based on
partisan political reasons or marital status. This
[[Page 49095]]
amendment conforms Sec. 315.908 to the new appeal procedures in part
751 and to E.O. 14284's direction that OPM prescribe the circumstances
and procedures for probationary and trial period appeals.
Part 432--Performance-Based Reduction in Grade and Removal Actions
OPM is revising Sec. 432.102(f) to clarify which employees are
excluded from the performance-based action procedures in part 432. The
revised exclusions distinguish between competitive service employees
serving probationary periods under initial appointments, competitive
service employees in appointments requiring no probationary period who
have not completed one year of current continuous employment,
preference eligible employees in the excepted service who have not
completed one year of current continuous employment, and non-preference
eligible employees in the excepted service who have not completed two
years of current continuous service in the same or similar positions in
an Executive agency under other than a qualifying temporary
appointment. These amendments align part 432 coverage with the
statutory definitions governing adverse-action coverage and with the
new probationary and trial period appeal framework.
Part 751--Probationary and Trial Period Appeals
OPM is adding new part 751 to establish the procedures for appeals
that were formerly routed to the MSPB under regulations that have been
rescinded or superseded following E.O. 14284. New part 751 identifies
the employees who may appeal to OPM, the issues that may be appealed,
the deadlines and procedures for filing appeals, the required agency
response, representation rules, OPM's adjudication procedures,
reconsideration, Director review, finality, and publication of final
decisions.
Section 751.101--Right To Appeal
Section 751.101(a) establishes the basic right to appeal to OPM.
Covered employees may appeal a termination during a probationary or
trial period required under part 11 or another authority administered
by OPM, and covered supervisors or managers may appeal assignment to a
nonsupervisory or nonmanagerial position for failure to complete a
supervisory or managerial probationary period required under subpart I
of part 315. This provision implements Civil Service Rule 11.6 and
replaces the prior MSPB forum with an OPM-administered appeal process.
In the final rule, OPM has revised Sec. 751.101(a) to conform the
general right-of-appeal provision to the appealable actions already
addressed elsewhere in Sec. 751.101. In addition to terminations
during a probationary or trial period and assignments to nonsupervisory
or nonmanagerial positions following failure to complete a supervisory
or managerial probationary period, the final text now expressly
references an agency's decision not to certify continuation of an
appointment and an agency's failure to certify and finalize an
appointment. This revision is clarifying and nonsubstantive. It does
not create any new appeal right, expand the grounds for appeal, alter
the burden of proof, or change the procedures governing appeals under
part 751. Rather, it ensures that paragraph (a) accurately reflects the
actions addressed in paragraph (c) and avoids any implication that
noncertification or failure-to-certify claims identified in paragraph
(c) fall outside the threshold right-of-appeal provision. Such claims
remain appealable only to the extent permitted by paragraphs (b)
through (d), including the limited grounds specified in paragraph (c).
Section 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 employee has completed one year of current
continuous service under other than a temporary appointment limited to
one 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 amended referenced
provisions of 5 CFR parts 432 and 752 in its rulemaking under RIN 3206-
AO80 (90 FR 17182); however, the cross-references in this rule would be
unaffected by the changes initiated in that rulemaking.
Section 751.101(b) places the burden on the appellant to establish
timeliness, OPM jurisdiction, and the appealable issue by a
preponderance of the evidence. OPM is adopting this standard because
the appellant is the party invoking OPM's limited regulatory
jurisdiction. The standard is also consistent with the narrow scope of
probationary and trial period appeal rights and with OPM's intent to
provide a streamlined process focused on threshold jurisdictional and
appealability issues.
Section 751.101(c) identifies the issues that may be appealed to
OPM. These issues mirror those under subpart I and the now-rescinded
subpart H of part 315. An employee may appeal allegations that a
covered action was based on partisan political reasons or marital
status. For this purpose, the covered actions include terminations not
required by statute, assignments to nonsupervisory or nonmanagerial
positions under Sec. 315.907, an agency's decision not to certify
continuation of an appointment during a probationary or trial period,
and an agency's failure to certify and finalize such an appointment.
Section 751.101(c)(2) preserves a limited procedural appeal for
terminations based in whole or in part on conditions arising before
appointment. In those cases, the employee may challenge whether the
agency failed to provide advance written notice stating the reasons for
the proposed action, a reasonable time to answer and furnish
affidavits, and a written decision at or before the effective date of
the action. These procedures preserve the historically limited
procedural protections associated with pre-appointment reasons without
converting probationary or trial period terminations into ordinary
adverse actions under chapter 75.
Section 751.101(d) provides that no other issues are appealable
under part 751. OPM is adopting this limitation to maintain the narrow
historical scope of probationary appeal rights and to implement E.O.
14284's direction to establish streamlined procedures. The rule does
not make every alleged violation of Civil Service Rule XI independently
appealable. For example, an alleged failure to provide written notice
of the effective date under Sec. 11.5(i), or an alleged failure to
conduct the meeting required under Sec. 11.5(f), is not by itself an
independent basis for reversal under part 751 unless the employee also
establishes one of the appealable issues identified in Sec.
751.101(c).
Section 751.101(e) provides that part 751 is the sole means of
appealing terminations during probationary or trial periods, but
clarifies that the rule does not preclude an employee from filing a
complaint, appeal, or other matter within the jurisdiction of the EEOC,
an Inspector General, the MSPB, the Department of Labor Veterans'
Employment and Training Service, or OSC where an independent legal
basis for such jurisdiction exists. OPM is revising the exclusivity
language to make clear that part 751 is exclusive
[[Page 49096]]
only for appeals covered by this part and that the rule does not
displace independent statutory or regulatory remedial schemes
administered by other entities.
Section 751.101(e) also provides that a party cannot obtain
judicial review of a decision under part 751. OPM is including this
language to reflect the limited regulatory nature of the appeal right
and the absence of a statutory judicial-review provision for OPM
decisions issued under this part. This limitation does not bar judicial
review where another statute independently provides it, such as in
certain discrimination matters processed through the EEO framework.
OPM has revised the exclusivity language in Sec. 751.101(e) to
refer to the ``sole means of appealing a covered action under Sec.
751.101(a),'' rather than the sole means of appealing ``terminations.''
This change is clarifying and nonsubstantive. As revised, Sec.
751.101(a) identifies several covered actions, including termination
during a probationary or trial period, assignment to a nonsupervisory
or nonmanagerial position after failure to complete a supervisory or
managerial probationary period, noncertification of continuation of an
appointment, and failure to certify and finalize an appointment.
Referring only to ``terminations'' in the exclusivity provision could
create unnecessary ambiguity about whether the same OPM appeal
procedures apply to the other covered actions identified in Sec.
751.101(a).
Section 751.101(f) defines ``employee'' for purposes of part 751.
The definition limits part 751 coverage to employees who had comparable
regulatory appeal rights before E.O. 14284 or who are otherwise
specifically covered by the final rule. The definition includes certain
competitive service probationers, supervisors and managers serving
supervisory or managerial probationary periods, emergency-indefinite
employees in their first year of service, and employees appointed under
part 307 before the end of their first year on an initial appointment.
OPM is also clarifying that excepted service employees outside part
307 are not covered by part 751 and may not appeal a trial period
termination under this part unless otherwise entitled by statute. This
limitation preserves the pre-E.O. scope of appeal rights. Before E.O.
14284, subpart H of part 315 did not create a general appeal right for
all excepted service employees serving trial periods. The final rule
therefore does not create a new across-the-board trial period appeal
right for excepted service employees who did not previously possess
one.
Section 751.102--Procedures for Submitting Appeals
Section 751.102 establishes the procedures for filing appeals and
requests for reconsideration. OPM is requiring use of an electronic
filing system to promote efficient case intake, consistent service,
reliable records, and timely adjudication.\47\ OPM is replacing the
placeholder reference to a specific URL with a reference to the
electronic filing system identified on OPM's website. This approach
avoids placing a particular web address in regulatory text and allows
OPM to update filing instructions as technology or system design
changes.
---------------------------------------------------------------------------
\47\ Commenter 0483 suggests that establishing an e-filing
system is more complex than OPM anticipates. OPM disagrees and has
already established an e-filing system.
---------------------------------------------------------------------------
Section 751.102(b) establishes a 30-calendar-day deadline for
filing an appeal. The rule specifies how to compute the filing
deadline, including treatment of weekends and Federal holidays, and
provides that late filings may be excused only upon a showing of good
cause. This deadline promotes prompt resolution of probationary and
trial period appeals while preserving limited flexibility for
circumstances warranting an extension.
Section 751.102(c) requires parties and representatives to register
as e-filers and accept electronic service, unless OPM grants an
exemption for good cause. The final rule also removes the sentence
suggesting that withdrawal of e-filing registration may preclude future
re-registration. OPM is deleting that language to avoid an
unnecessarily categorical consequence that could impair access to the
appeal process. OPM will instead administer registration, withdrawal,
re-registration, and good-cause exemptions through the procedures
posted on OPM's website and case-specific instructions.
Section 751.103--Form and Content of Appeal and Agency Response
Section 751.103(a) establishes the required contents of the initial
appeal, including the basis for the appeal, identifying and contact
information for the appellant and any representative, and supporting
documentation. This provision ensures that OPM and the agency have
sufficient information to identify the appealed action and the issues
the appellant is raising.
Section 751.103(b) establishes the agency response requirement. The
final rule adds a list of documents that must be included, at a
minimum, in the agency record of the action. The agency record must
include all documents considered or relied upon by the agency in taking
the action, the notice of action and effective date, documents showing
the appellant's appointment, service history, and probationary or trial
period status, any written certification, noncertification, or failure-
to-certify record under 5 CFR part 11, any documents supporting the
agency's asserted reasons, and a certification that the agency has
produced the complete record considered by the deciding official or
otherwise relied upon by the agency. In addition, OPM is specifying
that the agency must produce the complete agency record to OPM, but may
redact or withhold information on the copy served upon the appellant to
the extent necessary to comply with the Privacy Act, applicable legal
privileges, classified information or national security requirements,
protective orders issued by OPM, and any other applicable limitation on
disclosure required by law.
OPM is adding this minimum-record requirement to promote fairness,
transparency, and efficient adjudication. Because part 751 appeals will
generally be decided on the written record, it is important that the
agency provide the materials necessary for OPM to determine
jurisdiction, timeliness, appealability, and the merits of any
appealable claim. The agency certification requirement also addresses
concerns that an agency could selectively produce records or omit
materials relevant to the appealed action.
Section 751.103(c) permits the appellant to file a reply to the
agency response within 15 calendar days. The final rule clarifies that
the reply generally may address only factual and legal issues raised by
the agency response but may raise a new allegation of error if the
basis for that allegation rests on information first disclosed in the
agency response or if OPM grants leave for good cause. OPM is adding
this exception to avoid unfairness where an appellant could not
reasonably have raised an issue before seeing the agency's record or
response. This change balances the need for a streamlined process with
the need to provide a meaningful opportunity to respond to newly
disclosed information.
Section 751.103(d) allows the appellant, the appellant's
representative, and the agency to inspect OPM's appellate record upon
request, subject to any Privacy Act requirements, classified
information or national security restrictions, OPM protective orders,
or any other
[[Page 49097]]
applicable limitations required by law. Section 751.103(e) requires
parties to serve each other with copies of information submitted to OPM
and to include a certificate of service, subject to the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law. These provisions
help ensure that each party has access to the materials OPM may
consider.
Section 751.103(f) allows OPM to accept untimely filings upon a
showing of good cause. This provision gives OPM limited flexibility to
address unusual circumstances while preserving the overall timeliness
requirements of part 751.
Section 751.104--Employee Representatives
Section 751.104 permits an appellant to select a representative of
the appellant's choice, subject to specified limitations. OPM is
retaining the appellant's ability to obtain assistance while clarifying
that, if the selected representative is a Federal employee, the
representative may not perform representational functions in a duty
status, including while on official time under 5 U.S.C. 7131, and may
not claim agency reimbursement for expenses incurred while performing
the representational function. OPM is adopting this limitation because
part 751 appeals are regulatory probationary or trial period appeals
and are not proceedings under chapter 71. Nothing in Sec. 751.104
prevents an appellant from selecting a union official or other
representative, but the rule does not create a right to paid official
time for that representation.
Section 751.104 also permits OPM or the responsible agency to
disallow a representative when the representative is an employee of the
responsible agency or OPM and the representative's activities would
cause a conflict of interest or position. Because Federal employee
representatives may not perform representational functions while in a
duty status, additional exceptions for priority Government needs or
unreasonable Government costs are unnecessary, and the final rule does
not include them. This limitation is consistent with OPM's existing
approach in other administrative appeal contexts and is intended to
protect agency operations and the integrity of the adjudicatory
process.
Section 751.105--Adjudication of Appeals
Section 751.105(a) provides that OPM will assign personnel to
adjudicate appeals filed by employees of agencies other than OPM. The
final rule adds safeguards to ensure that OPM adjudicators are
insulated from officials who participated personally and substantially
in the challenged personnel action or provided case-specific advice
concerning that action. OPM is adding this language to strengthen the
appearance and reality of neutral adjudication.
Section 751.105(a) also prohibits OPM adjudicators from considering
material ex parte communications concerning the merits of an appeal. If
such communication occurs, OPM will place a summary of the
communication in the record and provide the parties a reasonable
opportunity to respond, unless disclosure is prohibited by law. This
provision promotes fairness and transparency while recognizing that
some information may be protected from disclosure by statute,
regulation, privilege, or other applicable legal limits.
The final rule further provides that no employee may adjudicate an
appeal if the employee has a relationship with the appellant or, during
the preceding two years, was an employee of the agency that is a party
to the appeal. This restriction is designed to reduce conflict concerns
and promote confidence in OPM's adjudicatory process. When necessary,
OPM may assign or obtain the services of an administrative law judge to
preside over an appeal.
Section 751.105(b) provides special procedures for appeals filed by
OPM employees. OPM will assign an administrative law judge to
adjudicate such appeals. To preserve both decisional independence and
constitutionally sufficient supervision, OPM will not disturb the
administrative law judge's initial decision in an OPM-employee appeal
unless a party shows harmful procedural irregularity, clear error of
law, or a material factual error that affected the outcome. This
approach provides an additional structural safeguard when OPM is both
the employing agency and the adjudicatory agency.
OPM has considered whether assigning an administrative law judge to
adjudicate appeals is consistent with 5 U.S.C. 554, 556, and 557. OPM
concludes that it is. Those provisions do not prohibit OPM from
assigning a properly appointed administrative law judge to serve as a
neutral adjudicator in appeals filed by OPM employees or where there
are other conflict-of-interest concerns. Section 554 applies only to
adjudications required by statute to be determined on the record after
opportunity for an agency hearing and, in any event, excludes matters
involving the selection or tenure of an employee, except matters
involving administrative law judges appointed under 5 U.S.C. 3105.
Sections 556 and 557 apply when a hearing is required to be conducted
under section 556. Probationary termination appeals under this part are
employee-tenure matters and are not formal APA adjudications under
sections 554, 556, and 557.
OPM is assigning an administrative law judge in OPM employee
appeals for a narrower and different reason: to insulate adjudication
of appeals filed by OPM's own employees from ordinary agency
involvement and to promote the appearance and reality of neutral
decision-making. This approach is consistent with the approach used by
the MSPB at 5 CFR 1201.13 to adjudicate appeals arising from its
employees. The assignment of an administrative law judge under this
section does not, by itself, make sections 554, 556, or 557 applicable
to the appeal, nor does it create any procedural right not otherwise
provided by this part.
Section 751.105(c) authorizes OPM to audit or investigate an
agency's action. 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. OPM notes that
the final rule removes the phrase ``and exclusive'' from ``sole and
exclusive discretion'' as an editorial simplification; OPM retains
discretion to determine whether an audit or investigation is warranted.
The section also explains when a hearing may be used: where the written
record is insufficiently developed to decide a material factual issue,
or where a disputed issue of witness credibility is material to the
outcome. OPM is adopting this approach to preserve a primarily written,
streamlined process while allowing additional fact development when
necessary and efficient.
Commenters 0004, 0454, 0455, and others asserted that the phrase
``in the interest of justice,'' which describes when OPM may audit or
investigate an agency's action, is unclear.
OPM agrees and is revising the standard for audits and
investigations in Sec. 751.105 to provide greater clarity and to
address commenters' concerns that
[[Page 49098]]
the proposed phrase ``in the interest of justice'' is vague. Under the
final rule, OPM may request additional information from a party, and it
may audit or investigate an agency action when it determines, in its
sole discretion, that the existing record is insufficient to resolve a
material issue within OPM's jurisdiction, and that the audit or
investigation is reasonably likely to produce information material to
resolving that issue.
This standard preserves OPM's ability to develop the record where
necessary while preventing audits or investigations from becoming
routine discovery. Part 751 appeals will generally be resolved on the
written record because the appealable issues are narrow. But OPM
recognizes that a written-record process must include a mechanism to
address material gaps, inconsistencies, or credibility issues that
cannot fairly be resolved on the existing submissions. The final rule
therefore permits targeted audits or investigations where additional
fact development is needed to decide jurisdiction, timeliness,
appealability, or the merits of a claim properly before OPM.
The standard also limits OPM's authority. An audit or investigation
must be tied to a material issue within OPM's jurisdiction under Sec.
751.101(c). OPM will not conduct an audit or investigation based solely
on speculation, generalized disagreement with the agency's action, or a
request for discovery unrelated to an appealable issue. The rule thus
provides a safeguard against incomplete or unreliable records without
creating an automatic right to discovery or a hearing in every case.
Paragraph (d) establishes that OPM will provide written
notification of its decision. Paragraph (e) establishes OPM's authority
to award remedies 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 the employee of pay and benefits while the
initial decision is pending reconsideration.
Section 751.106--Sanctions and Protective Orders
Section 751.106 authorizes OPM to issue protective orders and
cease-and-desist directives. OPM stated in the proposed rule that it
believes that MSPB procedures, while providing for protective orders,
are inadequate to protect Federal employees from threats and
harassment.
Some commenters objected that proposed Sec. 751.106 gave OPM broad
protective order authority and could chill lawful communications by
appellants, witnesses, employees, or union representatives. Commenters
objected in particular to language that could be read to restrict
communications that might foreseeably lead to harassment or to prohibit
use of any information related to an appeal for any purpose unrelated
to the adjudication.
OPM has considered these comments and is narrowing Sec. 751.106 in
the final rule. The final rule does not adopt the broad ``reasonably be
foreseen to lead to harassment'' formulation and does not authorize OPM
to bar use of any information related to an appeal for any purpose
whatsoever. Instead, OPM may issue a protective order or cease-and-
desist directive only to protect the integrity of the adjudicatory
process; prevent threats, intimidation, targeted harassment, improper
witness contact, disclosure of protected personal information; or
prevent misuse of nonpublic information obtained through the appeal.
The final rule also adds two limiting principles. Any protective order
must be no broader than reasonably necessary, and any such order must
not restrict lawful communications protected by law.
OPM declines to remove protective-order authority entirely. Because
OPM will adjudicate appeals under part 751, it must have reasonable
procedural tools to protect witnesses, parties, protected personal
information, nonpublic appeal materials, and the integrity of the
adjudicatory record. OPM also retains authority to act sua sponte or
preemptively where necessary, because threats to the process, improper
witness contact, or disclosure of protected information may arise
before a party files a motion or before harm has fully occurred. That
authority is limited to matters connected to an appeal under part 751
and to the specific purposes identified in Sec. 751.106(a).
The final rule does not prohibit an appellant from discussing the
appellant's own experience, seeking advice or representation,
communicating with a union representative or attorney, filing or
pursuing a matter before another authorized forum, making protected
whistleblower disclosures, communicating with Congress, or engaging in
any other communication protected by law. As revised, Sec. 751.106 is
a tailored case-management provision designed to protect the fairness
and integrity of the adjudicatory process.
Commenter 0111 suggested that OPM should revise MSPB regulations
including, for example, by directing MSPB to be more generous in its
use of protective orders to prevent harassment and other types of
improper behavior and address other areas in which OPM believes the
MSPB's actions, or lack thereof, are deficient.
Commenter 0111 is not the first to propose OPM issue regulations
superimposing its preferred approach on MSPB when handling classes of
appeals before the Board. In fact, OPM has previously issued
regulations directing MSPB how to handle appeals from reduction in
force (RIF) actions. 50 FR 35507 (1985). However, OPM lacks statutory
authority to dictate appeal procedures--whether RIFs, or any other
class of personnel appeals--to the MSPB when the venue for the appeal
is the MSPB. As explained in American Federation of Government
Employees v. OPM, OPM exceeds ``its designated statutory authority by
issuing a regulation that purports to instruct the MSPB how to conduct
personnel appeals.'' 821 F.2d 761, 768 (D.C. Cir. 1987). That authority
lies with the MSPB itself. ``Congress' specific delegation to MSPB of
autonomy over its own appellate procedures compels just the opposite
conclusion: if OPM chooses to use the MSPB for dispute resolutions, it
must take that statutory device as it finds it.'' Id., at 769.
Section 751.106(b) authorizes OPM to impose case-related
consequences when a party fails to comply with an order issued under
Sec. 751.106(a). OPM may draw adverse inferences, prohibit the
noncompliant party from introducing evidence or relying on parts of the
record, or eliminate appropriate portions of the noncompliant party's
filings or submissions from consideration. These sanctions are
necessary to give effect to OPM's orders and to protect the fairness
and integrity of the adjudicatory process.
Commenter 0292 raised a concern that OPM's authority to issue
preventative protective orders could be exercised in bad faith and that
an appellant could lose an appeal based on an alleged violation of such
an order. OPM has considered this concern and has revised the final
rule to reduce the risk of
[[Page 49099]]
overbroad or improper use of protective-order authority.
As finalized, Sec. 751.106 is not a general authority for OPM to
restrict speech, control communications unrelated to an appeal, or
create a procedural trap for appellants. OPM may issue a protective
order or cease-and-desist directive only for specified process-
integrity purposes: to protect the integrity of the adjudicatory
process; prevent threats, intimidation, targeted harassment, improper
witness contact, or disclosure of protected personal information; or
prevent misuse of nonpublic information obtained through the appeal.
The final rule further provides that any protective order must be no
broader than reasonably necessary and must not restrict lawful
communications protected by law. These limitations directly address
commenter concerns that the proposed language could be read too
broadly.
OPM also clarifies that a violation of a protective order will not
automatically result in denial or dismissal of an appeal. Section
751.106 is a case-management provision, not a dispositive merits rule.
If a party violates a lawful protective order, OPM may impose only
case-related sanctions appropriate to the violation, such as drawing an
adverse inference, limiting a party's reliance on improperly used
evidence, or excluding appropriate portions of a filing or submission.
Any such consequence must be tied to the violation and to the integrity
of the adjudicatory process; it may not be used to avoid deciding the
appealable issues under Sec. 751.101(c).
OPM further disagrees that the possibility of bad faith justifies
eliminating protective-order authority altogether. Any adjudicatory
system requires tools to protect parties, witnesses, personal
information, nonpublic appeal materials, and the integrity of the
record. The final rule addresses the risk identified by Commenter 0292
by narrowing the grounds for protective orders, requiring tailoring,
preserving lawful protected communications, limiting available
sanctions to case-related consequences, and providing written decisions
subject to reconsideration and Director review before finality. OPM
therefore declines to remove preventative protective-order authority,
but has narrowed and clarified Sec. 751.106 to ensure that the
authority is used only to protect the fairness and integrity of the
part 751 adjudication.
Sections 751.107, 751.108 and 751.109--Reconsideration, Director
Review, and Finality
Section 751.107 creates a process for reconsideration of an initial
decision. Either party may request reconsideration within 30 calendar
days, and OPM may also reopen and reconsider an initial decision on its
own initiative. The grounds for reconsideration include erroneous
material factual findings, legal error affecting the outcome, new and
material evidence or legal argument that was unavailable despite due
diligence when the record closed, or other good cause. OPM is including
this reconsideration process to provide an internal mechanism for
correcting material errors while preserving the streamlined nature of
part 751 appeals.
Section 751.108 permits the OPM Director, on the Director's own
initiative and before a decision becomes final under Sec. 751.109, to
reopen and reconsider an initial decision or a reopened and
reconsidered decision. In response to comments expressing concern that
Director review could be too open-ended, the final rule identifies
nonexclusive considerations that may inform the Director's exercise of
this authority. These include whether the decision may contain clear
legal error, may rest on an erroneous finding of material fact, may
involve an issue of exceptional importance, may affect the
governmentwide administration of civil service laws, rules,
regulations, or OPM policy, may conflict with another OPM decision, or
may otherwise warrant Director review.
This revision preserves the Director's responsibility for final
agency action and ensures principal-officer oversight of important
legal, factual, consistency, policy, and governmentwide civil service
issues before finality attaches. At the same time, the final rule
clarifies that Director review is sua sponte and does not create a
separate right for a party to request Director review; parties seeking
reconsideration must proceed under Sec. 751.107. If the Director
reopens and reconsiders a decision under Sec. 751.108, the Director
may take any action available under Sec. 751.107(c).
Commenters 0206, 0207, 0440, 0452, and others contended that the
rule violates the Appointments Clause of the Constitution, pursuant to
Lucia v. SEC, in which the Supreme Court held that ALJs presiding over
enforcement proceedings were exercising significant authority and
therefore constituted Officers of the United States. See Lucia v. SEC,
585 U.S. 237 (2018). Commenters argue that adjudicators under this rule
will similarly exercise significant authority.
OPM agrees in part. Although it is not judicially established that
adjudicators under this rule will be Officers of the United States,
there are substantial arguments that they will be. To ensure
consistency with the Appointments Clause, the Director of OPM--who is
authorized by 5 U.S.C. 1103(a)(2) to appoint individuals to be employed
by OPM--will appoint, or ratify the appointment of, each official who
adjudicates appeals under this rule. Article II vests executive power
in the President, who may rely on subordinate officials to carry out
that authority. OPM recognizes, however, that supervision and review by
the Director do not by themselves resolve the Appointments Clause
question. In both Freytag v. Commissioner, 501 U.S. 868 (1991), and
Lucia v. SEC, 585 U.S. 237 (2018), the adjudicators held to be officers
were subject to review by principal officers; the availability of
higher-level review therefore does not mean that an adjudicator is not
an officer subject to the Appointments Clause. United States v.
Arthrex, Inc., 594 U.S. 1 (2021), in turn, addressed whether
administrative patent judges were principal or inferior officers--not
whether they were officers at all--and confirmed that decisions of
inferior officers must be subject to direction and review by duly
appointed principal officers. Because the Director will appoint or
ratify the appointments of the officials who adjudicate appeals under
this rule and retains full review authority over their decisions, the
rule satisfies both requirements. This final rule thus responds to
neutrality and accountability concerns raised by commenters while
preserving final agency supervision within OPM's record-based
adjudicatory framework.
Section 751.109 describes the process by which OPM's initial
decision becomes its final decision. Under Sec. 751.109(a), an initial
decision becomes OPM's final decision 30 calendar days after issuance
unless, before that time, a party timely requests reopening and
reconsideration under Sec. 751.107 or the Director reopens the
decision under Sec. 751.108. Under Sec. 751.109(b), a timely
reconsideration request suspends finality: if OPM denies or dismisses
the request without reopening the initial decision, the initial
decision becomes final 30 calendar days after issuance of the denial or
dismissal unless the Director intervenes, and if OPM grants the
request, the resulting reopened and reconsidered decision becomes final
as provided in that paragraph. Under Sec. 751.109(c), an untimely
request does not suspend finality. Under
[[Page 49100]]
Sec. 751.109(d), a decision by the Director that disposes of the
appeal is OPM's final decision and is effective upon issuance; if the
Director remands the appeal or directs further proceedings, any
resulting decision becomes final under Sec. 751.109.
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 executive
power in the President who must rely upon subordinates to exercise his
authority. Adjudicators assigned to adjudicate appeals under this rule
exercise significant authority and are therefore likely inferior
officers of the United States. Accordingly, their appointments will be
made, or ratified, by the Director consistent with the Appointments
Clause and 5 U.S.C. 1103(a)(2), and their decisions will be supervised
and reviewable by the Director, a principal officer appointed by the
President with Senate consent.
Section 751.109(e) requires OPM to maintain a publicly accessible
website containing final decisions issued under part 751 that address a
party's claim on the merits, subject to applicable limits. Final merits
decisions not made publicly available must be made available upon
request by a concerned party. OPM is including this provision to
promote transparency, consistency, and predictability in the
administration of part 751 while preserving appropriate limits on
public disclosure.
Part 752--Adverse Actions
OPM is revising Sec. 752.201(b)(1) and (2) to clarify coverage for
suspensions of 14 days or less. The revised text distinguishes between
competitive service employees who have completed a probationary period
and competitive service employees who have completed one year of
current continuous employment in the same or similar positions under
other than a temporary appointment limited to one year or less. This
amendment aligns the coverage language with the statutory and
regulatory distinction between probationary employees and employees who
have acquired coverage under the adverse-action procedures.
OPM is revising Sec. Sec. 752.401(c)(1), 752.401(c)(2)(i),
752.401(d)(10), and 752.401(d)(12) to conform part 752 coverage to
Civil Service Rule XI and the new part 751 process. The revised text
excludes competitive service employees serving probationary periods
unless they meet the applicable coverage requirements and separately
addresses nonpreference eligible employees serving trial periods under
initial excepted service appointments pending conversion to the
competitive service. These conforming amendments ensure that employees
who remain in probationary or trial period status are directed to the
appropriate limited appeal procedures, while employees who have
obtained statutory adverse-action coverage remain governed by part 752
where applicable.
V. Regulatory Analysis and Related Comments
A. Statement of Need
On April 24, 2025, the President issued E.O. 14284, which rescinded
the regulations in subpart H of part 315 of title 5, including the
circumstances and procedures for filing an appeal from removal during a
probationary period. Thus, this rulemaking is necessary to prescribe
the circumstances under, and procedures by which, employees terminated
during 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 probationary or
trial period employees to appeal removals. Reinstating MSPB procedures
would unnecessarily add complexity to a process designed for Federal
agencies to evaluate whether it is in the public's interest to retain
newly hired employees into the Federal service. When appealing to the
MSPB, employees have a statutory right to a hearing when the matter is
within the MSPB's jurisdiction. 5 U.S.C. 7701(a). And before reaching a
hearing, MSPB regulations allow the parties to engage in discovery. 5
CFR 1201.71--1201.75. 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.
Many Federal agencies and several commenters who support the shift
of probationary appeals from MSPB to OPM cite the fact that MSPB was
designed for tenured employee appeals and that OPM can adjudicate
probationary appeals more efficiently and expediently. This shift is
expected to reduce unnecessary litigation. Furthermore, agencies cite
the administrative burden of litigation at MSPB as a troublesome reason
why supervisors and managers do not remove ineffective employees during
probationary or trial periods and allow these employees to become
tenured.
As of September 30, 2025, roughly 1,037 cases were pending before
the full Board at MSPB headquarters awaiting petition-for-review
decisions, following a period when the Board lacked a quorum to issue
decisions. Backlogs of that size do not clear quickly. Moreover, of the
9,050 cases that the MSPB processed in FY 2025, only 55.8 percent were
resolved within 120 days. This means that nearly half of Federal
employees who filed appeals waited more than four months for an initial
decision. This is before any petition for review to the full Board.\48\
Allowing probationary appeals to take months, or even years, when
accounting for full MSPB review is inconsistent with notions of
efficient adjudication. There is a cost to delay, and this is
especially the case for agencies and probationary employees where the
grounds for review are statutorily limited.
---------------------------------------------------------------------------
\48\ Merit Systems Protection Board, FY 2025 Annual Performance
Report 14 (2025), available at https://www.mspb.gov/about/annual_reports/MSPB_APR_for_FY_2025.pdf.
---------------------------------------------------------------------------
Under this rule, OPM will adjudicate a limited number of issues
using streamlined procedures that reduce the administrative burden to
the government. OPM believes, along with the Federal agencies that
commented, that this administrative burden has been one factor that has
inhibited supervisors from fully utilizing probationary periods.\49\
Additionally, this rule gives OPM jurisdiction over appeals from
supervisors and managers assigned to nonsupervisory and nonmanagerial
positions who fail 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.
---------------------------------------------------------------------------
\49\ See U.S. Government Accountability Office, Improved
Supervision and Better Use of Probationary Periods Are Needed to
Address Substandard Employee Performance 7 (2015), available at
https://www.gao.gov/assets/gao-15-191.pdf.
---------------------------------------------------------------------------
Numerous commenters argued that OPM has not adequately explained
the benefits of the rule or justified moving probationary appeals from
MSPB to OPM. Many commenters defended current MSPB procedures.
Commenters 0342, 0400, 0409, and 0503 maintained that the proposed rule
does not identify a failure in the MSPB process, evidence of a problem
requiring change, or any benefit from that change. Commenters 0440 and
0450 argued that the rule transfers adjudications from MSPB to OPM
without explaining why that transfer is beneficial, and state that MSPB
is a preferable adjudicatory organization. Commenters 0444 and
[[Page 49101]]
0587 stated that OPM must explain in greater detail why MSAC would be a
better channel for adjudicating appeals, rather than relying on
criticism of MSPB's prior lack of a quorum. Commenters 0312, 0394,
0423, and others asserted that MSPB's lack of a quorum was a
manufactured crisis used to justify permanent structural change and
suggested that the rule would not be necessary if MSPB were fully
staffed. Commenter 0494 stated that OPM has not provided sufficient
empirical evidence that MSPB procedures are unworkable or that
transferring appeals to OPM will improve efficiency, including through
analysis of case volume, resource requirements, and safeguards.
Commenters 0175, 0202, 0212, 0220, and 0237 further stated that placing
probationary and trial period appeals at OPM instead of MSPB creates a
risk of inconsistent implementation across agencies and components.
OPM has considered these comments and disagrees. OPM does not
premise this final rule on a conclusion that MSPB is unable to
adjudicate personnel matters generally, or that MSPB administrative
judges are not capable adjudicators. The issue is narrower.
Probationary and trial period appeals are limited regulatory appeals
involving a narrow set of issues. They are not ordinary chapter 75
adverse-action appeals, and Congress did not create a general statutory
right for probationary employees to appeal probationary terminations to
MSPB. MSPB's prior role in this limited class of appeals existed
because OPM regulations assigned that role to MSPB. Following E.O.
14284 and Civil Service Rule XI, MSPB no longer hears probationary
appeals under 5 CFR part 315, subpart H. OPM has determined that these
limited appeals should be adjudicated through a streamlined OPM process
tailored to the narrow grounds that remain appealable.
Under the prior regulatory framework, a probationary or trial
period appeal within MSPB's jurisdiction could proceed through the same
multi-stage adjudicative structure that governs other MSPB appellate
cases, even though the issues in such appeals are narrow. The prior
subpart H probationary appeal rights were limited: under 5 CFR 315.806,
an employee could appeal certain probationary terminations to MSPB only
on specified grounds, including partisan political reasons, marital
status, certain procedural defects for actions covered by the prior
Sec. 315.805, and discrimination claims only when raised in addition
to those limited grounds. Despite the limited nature of those grounds,
however, appeals raising these claims would nonetheless have to proceed
through the following multi-stage process:
First, once an appeal was filed, the matter could be assigned to an
MSPB administrative judge. MSPB part 1201 procedures authorize
administrative judges to manage the proceeding, rule on motions,
regulate hearings, address discovery disputes, receive evidence, and
issue an initial decision. MSPB procedures also provide that an
appellant generally has a right to a hearing on the merits if the
appeal is timely and within MSPB's jurisdiction, and they authorize
discovery into relevant, nonprivileged matters.
Second, after the administrative judge issued an initial decision,
either party could seek review by the full Board. Under MSPB rules, an
initial decision becomes final after 35 days unless a petition for
review or other specified filing prevents finality. If a petition for
review is filed, the Board may deny review, grant review, reopen the
case, or issue a final decision disposing of the action.
Third, after a final MSPB decision, judicial review may be
available under 5 U.S.C. 7703. That provision allows an employee or
applicant adversely affected or aggrieved by a final MSPB order or
decision to obtain judicial review, generally by filing a petition in
the Federal Circuit or another court of appeals of competent
jurisdiction, depending on the type of case, within the statutory time
period.
That multi-stage process may be appropriate for actions Congress
made appealable to MSPB under chapter 75 or other statutes. But OPM has
determined that it is not necessary or well-tailored for the limited
regulatory appeal rights available to employees serving probationary or
trial periods. A probationary or trial period exists before an
appointment becomes final and is designed to allow the Government to
determine whether the employee should continue in Federal service. See
5 U.S.C. 3321(a). The issues in these appeals ordinarily turn on
threshold and record-based questions, such as whether the appellant was
serving a covered probationary or trial period, whether OPM has
jurisdiction, whether the appeal was timely and properly filed, whether
the termination falls within the limited grounds for appeal, whether
required procedures were followed, and whether any violation prejudiced
the appellant.
Rather than reinstating these multi-stage MSPB procedures designed
to adjudicate adverse actions, the final rule provides a streamlined
OPM process tailored to probationary and trial period appeals. Under
revised Sec. 751.101, a covered employee may file an appeal with OPM
on the grounds specified in the regulation. Under Sec. 751.102, the
appeal must be filed within the prescribed time limits and through
OPM's electronic filing system unless OPM grants an exemption for good
cause. This filing structure is intended to provide a uniform intake
process, reduce procedural disputes, and allow OPM to identify
jurisdictional and timeliness issues promptly.
The OPM process is designed to put the relevant agency record
before the adjudicator early. Under revised Sec. 751.103, the agency
must file a response within the prescribed period and produce the
complete agency record to OPM. For a probationary or trial period
appeal, that record should include the appointment documents,
personnel-action records, probationary or trial period status
documentation, notice of termination, effective-date materials,
documents relied upon by the agency in taking the action, any required
notice or opportunity-to-respond materials, and any other records
necessary to determine jurisdiction, compliance with applicable
procedures, and prejudice. The agency must serve the appellant with the
agency record, subject only to legally required redactions or
withholding, such as those required by the Privacy Act, applicable
privileges, classified-information or national-security requirements,
OPM protective orders, or other disclosure limits required by law.
The final rule also preserves meaningful fact development without
making discovery and hearings automatic in every case. The appellant
may reply to the agency response, and OPM may permit new allegations
where the basis rests on information first disclosed in the agency
response or where good cause exists. Under revised Sec. 751.105, OPM
may require additional information and may conduct further proceedings
where necessary and efficient to resolve a material issue within OPM's
jurisdiction. A hearing remains available where the written record is
insufficiently developed to decide a material fact or where a material
credibility issue requires live testimony. This approach preserves the
tools needed to resolve disputed material issues while avoiding
unnecessary discovery, hearing practice, and litigation costs in cases
that can be decided on the record.
Finally, instead of Board-level review and subsequent MSPB-based
judicial review, the final rule provides for OPM reconsideration,
limited Director review before finality, and final OPM action.
[[Page 49102]]
Under revised Sec. 751.107, either party may seek reconsideration of
an initial decision on the grounds specified in the rule, and OPM may
reopen and reconsider where appropriate. Under revised Sec. 751.108,
the Director may review a nonfinal decision on the Director's own
initiative before finality, including where review is warranted by
potential legal error, material factual error, an issue of exceptional
importance, governmentwide civil service administration, conflict among
OPM decisions, or another comparable reason. Once a decision becomes
final under Sec. 751.109, there is no further administrative appeal
under part 751. The final rule separately preserves collateral matters
within the jurisdiction of other forums where applicable.
OPM concludes that this structure better fits the nature of
probationary and trial period appeals. The MSPB process can involve
administrative-judge proceedings, discovery, hearings, petitions for
review to the full Board, possible reopening or remand, and subsequent
judicial review. By contrast, the final rule provides a single, record-
focused OPM process that requires the agency to produce the complete
record, gives the appellant an opportunity to respond, permits targeted
fact development where needed, and provides reconsideration and final
agency supervision before finality. This approach reduces delay, cost,
and uncertainty while preserving administrative review of whether the
agency complied with the limited legal and regulatory requirements
governing probationary and trial period terminations.
OPM also disagrees that it must prove MSPB ``failed'' before
deciding against reinstituting MSPB as the forum for limited
probationary appeals. An agency may revise a regulatory process when it
reasonably concludes that a different process better implements the
governing law and policy. Here, OPM is implementing Civil Service Rule
XI, exercising its authority to prescribe the circumstances and
procedures for probationary and trial period appeals, and aligning the
appeal forum with OPM's responsibility for administering the civil
service rules governing probationary and trial periods. The final rule
therefore rests on OPM's independent policy judgment about the
appropriate forum and procedures for these appeals, not solely on
MSPB's prior quorum issues.
MSPB's prior lack of a quorum and associated backlog are
nevertheless relevant practical considerations. They illustrate the
risks of routing narrow regulatory appeals through a multi-layered
adjudicatory system that may be affected by Board vacancies and
backlogs. The MSPB's periodic losses of a quorum have significantly
delayed its ability to adjudicate cases. But the rule would be
justified even if OPM had guarantees that the MSPB would retain a
quorum in perpetuity going forward. The central problem is not merely
delay caused by a lack of quorum; it is the mismatch between the
limited scope of probationary appeal rights and the more elaborate
procedures associated with MSPB adjudication. OPM concludes that a
written-record process, with targeted fact development and hearings
only where necessary and efficient, is better suited to resolving these
narrow claims.
OPM further disagrees with commenters who suggest that MSPB
funding, faster confirmations, or internal MSPB case-management reforms
are adequate substitutes for this rule. Increasing MSPB funding and
changing the speed of Senate confirmations are outside OPM's regulatory
authority. OPM also cannot simply retain MSPB as the venue while
directing MSPB to use OPM's preferred procedures. The courts have
already held that OPM cannot do this. When appeals are assigned to
MSPB, MSPB generally controls its own adjudicatory procedures. Thus, a
rule directing MSPB to adjudicate these cases differently would raise
separate legal concerns and would not accomplish OPM's objective of
establishing an OPM-administered process under Civil Service Rule XI.
The final rule provides concrete benefits. It clarifies the appeal
route for covered probationary and trial period employees; separates
OPM appeals from claims that belong in other forums, such as EEOC
discrimination claims; establishes--where the current status quo
affords no appeal at all--the limited substantive appeal grounds
historically available to covered probationary employees; reduces
unnecessary procedural complexity; and supports timely resolution of
appeals involving employees whose appointments have not yet been
finalized. The rule also provides a process more proportionate to the
narrow issues at stake: partisan-political reasons, marital status, and
specified procedural claims involving terminations based in whole or in
part on pre-appointment reasons.
OPM also expects the rule to produce administrative efficiencies,
including faster disposition of narrow regulatory appeals, clearer
claim routing, reduced duplication between MSPB and EEOC processes,
more consistent administration of Civil Service Rule XI, and a process
that better supports agency use of probationary and trial periods as
meaningful final stages of the examining process.
OPM does not agree that moving these appeals to OPM will create
inconsistency across agencies or components. Under the final rule, the
employing agency will make the underlying personnel decision, but OPM
will adjudicate the limited appealable issues under a single
governmentwide regulation. Centralizing these appeals within OPM is
more likely to promote consistency than leaving agencies to develop
different practices for issues arising under Civil Service Rule XI. OPM
has also committed to issue written decisions and to make final merits
decisions publicly available, subject to applicable limits protecting
privacy, privileged information, protected personal information, law-
enforcement-sensitive information, and other information that may not
lawfully be disclosed. Public availability of final merits decisions
will promote consistent interpretation of part 751, provide guidance to
agencies and employees, and allow the public to evaluate how OPM
applies the rule over time.
The final rule also includes safeguards to address concerns about
record integrity and fairness. Agencies must submit a response and all
documents in the agency record supporting the action. Appellants may
reply. OPM may require additional information, audit or investigate the
agency's action when doing so is necessary to determine a material
fact, and conduct a hearing where the written record is insufficient or
where credibility issues make a hearing necessary and efficient. OPM
will issue written decisions and provide reconsideration and Director
review before finality. For appeals filed by OPM employees, the final
rule provides an additional safeguard by assigning the matter to an
administrative law judge. These procedures provide a record-based,
reviewable administrative process tailored to the limited rights at
issue.
Commenters 0443, 0507, and 0588 claimed that OPM is not more
efficient than the current system, citing delays in OPM's retirement
appeals branch and arguing that MSPB's quorum issue is an insufficient
basis for the rule because appeals can continue to be processed during
a lack of quorum. Commenters 0421, 0448, and 0610 suggested that the
appropriate solution to MSPB's quorum or efficiency issues is faster
Senate confirmation and more funding, rather than a change in venue.
Commenter 0421 further stated that the current
[[Page 49103]]
system already heavily favors agencies, noting that 94.7 percent of
appeals were dismissed in FY 2024 and arguing that OPM has not cited
instances of MSPB wrongly overturning agency decisions.
OPM disagrees. OPM's retirement-related processes are governed by
different statutes, involve different claims, and do not show that MSAC
cannot adjudicate this narrow class of probationary and trial period
appeals. The final rule establishes a streamlined process specifically
designed for these cases. It uses electronic filing, defined deadlines,
required agency records, appellant replies, targeted record
development, and hearings only when necessary and efficient. OPM has
assessed the expected caseload and resource needs and has determined
that MSAC and OPM adjudicatory staff can administer the process
efficiently. OPM will monitor implementation and may adjust staffing,
case-management practices, and guidance as appropriate.
OPM also does not need to show that MSPB wrongly overturned agency
decisions in order to provide a different forum when reestablishing
probationary appeals. The question is not whether MSPB reached
incorrect results in particular cases. The question is whether the
existing forum and procedures remain the best fit for a narrow
regulatory appeal right after E.O. 14284 and Civil Service Rule XI.
Commenter 0421's assertion that a high percentage of probationary
appeals are dismissed does not undermine the rule. To the contrary, a
high dismissal rate may indicate that many appeals turn on threshold
jurisdictional, timeliness, or appealability issues that can be
resolved efficiently through a more tailored written-record process.
OPM concludes that such cases do not require the full procedural
structure used for broader statutory adverse-action appeals.
Commenters 0351, 0352, 0399, 0400, and 0593 claimed that the
current system is working well, that only the most qualified
individuals are selected for government employment through rigorous
evaluation, and that supervisors already have discretion to ensure
successful performance. Commenter 0366 asserted that the government
should adopt shorter probationary periods, while Commenter 0506 stated
that it is already too easy to fire probationary employees.
OPM does not adopt those views. The final rule is not an assessment
of the qualifications or performance of the Federal workforce as a
whole. Nor does the rule rest on a premise that most Federal employees
are unsuitable. The rule addresses a more specific issue: the
procedures and forum for resolving limited appeals by employees whose
appointments have not yet been finalized. A probationary or trial
period is part of the examining and assessment process. During that
period, the agency must be able to determine whether continued
employment advances the public interest and the efficiency of the
service. OPM concludes that a limited and streamlined appeal process is
consistent with that function.
Commenter 0399 claimed that the proposed rule contains no
demonstrated nexus between its guidance and improved performance or
accountability. Commenters 0432 and 0585 stated that the rule will
increase waste and inefficiency. Commenter 0567 suggested that the rule
solves a problem that does not exist and that OPM has ulterior motives.
Commenter 0586 maintained that the costs of probationary appeals are a
small price to pay for confidence in the system's legitimacy. Commenter
0601 argued that there is no economic sense in separating probationary
employees because the government has already incurred the costs of
hiring and onboarding them.
OPM disagrees. The nexus between the rule and accountability is
straightforward. The probationary and trial period is intended to allow
agencies to assess whether an individual should receive a finalized
appointment to the Federal service. A lengthy or procedurally
disproportionate appeal system can discourage full use of that
assessment period and can impose unnecessary costs when the appealable
issues are narrow. By creating a focused OPM process, the final rule
supports more timely resolution of the limited claims that remain
appealable while preserving appropriate protections against unlawful
actions.
OPM also rejects the suggestion that prior government investment in
an employee should dictate finalization of the appointment. Hiring,
onboarding, and training costs are important, but they are not
dispositive. Those costs do not establish that continued employment
advances the public interest, the agency's organizational goals, or the
efficiency of the service. Indeed, treating sunk costs as a reason to
retain an employee who has not demonstrated suitability for finalized
appointment would undermine the purpose of the probationary and trial
period system. The public interest is served by allowing agencies to
make a timely and meaningful determination before an appointment
becomes final.
Nor does OPM agree that confidence in the system requires
reestablishing the prior MSPB forum and procedures. Confidence is
promoted by lawful authority, clear rules, consistent adjudication, a
defined record, reasoned written decisions, public availability of
final merits decisions, and preservation of independent remedies where
Congress or another lawful authority has provided them. The final rule
provides those features while avoiding procedures that OPM has
determined are not necessary for the limited regulatory appeal rights
at issue.
Commenter 0584 stated that OPM should release data on the number of
appeals filed since agencies undertook termination actions after
January 20, 2025, to provide transparency about the impact of the
proposed changes. OPM declines to delay or alter the rule on that
basis. This final rule is prospective. It governs covered appeals from
terminations effected on or after the effective date of the rule, and
it does not reopen, extinguish, or determine the outcome of prior
personnel actions, pending appeals, or pending litigation. Data
concerning agency actions taken before the effective date would not
change the legal authority for this rule or the policy judgment that
future covered appeals should be adjudicated under part 751.
OPM has provided the information necessary to support this
rulemaking, including the legal basis for the rule, the historical and
policy reasons for preserving a limited probationary appeal process,
the reasons for moving the forum to OPM, the expected case volume and
resource assumptions, and the safeguards included in the final rule.
OPM also has committed to public availability of final merits decisions
under part 751, subject to applicable legal limits. That commitment
will provide ongoing transparency into how OPM applies the rule in
future cases.
For these reasons, OPM declines to reestablish MSPB as the
adjudicatory forum or to withdraw the rule based on commenters'
objections concerning need, benefits, efficiency, or transparency. OPM
concludes that the final rule is a lawful and appropriately tailored
means of implementing Civil Service Rule XI, preserving the limited
substantive appeal rights historically available to covered
probationary employees, and establishing a more efficient
administrative process for resolving those claims.
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. As explained,
reinstituting employee appeals to the MSPB would not be as
[[Page 49104]]
efficient as having OPM adjudicate appeals. OPM does not believe that
returning appeals of probationary actions to MSPB is the best
alternative for agencies or employees.
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 stated in the proposed rule that it believed that including
this ground for appeal would be unnecessary for two reasons. First,
employees serving a probationary or trial period understand that, as a
condition of employment, their employment will terminate 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.
Commenter 0341 challenged this reasoning and urged OPM to add an
appeal right for an agency's failure to provide written notice under
Sec. 11.5(e). OPM also independently considered whether to expand the
appeal right for probationary employees under this rule to cover the
agency's failure to hold a meeting with the employee as described in
section 5(b) of E.O. 14284 and incorporated into Sec. 11.5 by this
final rule. After extensive consideration, OPM declines to make those
alleged procedural defects independent grounds for appeal under part
751.
OPM emphasizes that agencies must comply with Civil Service Rule
XI, E.O. 14284, and the regulations in part 11. The final rule
incorporates additional Rule XI procedures into Sec. 11.5 to provide
greater clarity and administrative convenience for agencies, employees,
supervisors, and human resources practitioners. OPM's decision not to
make every Rule XI procedural requirement independently appealable does
not make those requirements optional. Rather, OPM concludes that
noncompliance with those requirements is better addressed through
management oversight, OPM accountability reviews, corrective guidance,
agency-level compliance mechanisms, and, where applicable, the
administrative-error petition process in Sec. 11.5.
The written notice requirement in Sec. 11.5(e), redesignated in
this final rule as Sec. 11.5(i), requires an agency to notify the
employee in writing of the effective date of the action before
terminating the service of an employee serving a probationary or trial
period. That notice requirement serves an important administrative
function. It informs the employee of when the separation will occur and
provides clarity for personnel, payroll, benefits, and recordkeeping
purposes. But it does not create a substantive standard for determining
whether the employee's appointment should be finalized, nor does it
provide a right to advance notice of charges, an opportunity to
respond, or a hearing before termination.
For that reason, OPM concludes that a failure to provide written
notice of the effective date should not be an independent basis for
reinstatement or reversal of a termination. The omission of such notice
does not establish that the agency's decision was based on partisan
political reasons or marital status, and it does not establish that the
agency failed to follow the separate procedures applicable when a
termination is based in whole or in part on conditions arising before
appointment. Nor would the absence of written notice, standing alone,
change the substantive public-interest determination required by Civil
Service Rule 11.5. OPM may, however, consider the absence or timing of
written notice where relevant to a procedural matter properly before
OPM, including whether an appeal was timely filed or whether good cause
exists for an untimely filing.
OPM also declines to make the meeting described in section 5(b) of
E.O. 14284 an independent ground for appeal. That meeting is part of
the agency's internal assessment and certification process near the end
of an initial probationary or trial period. It is designed to help
agency officials evaluate the employee's performance and conduct, the
needs and interests of the agency, and whether continued employment
would advance the public interest, the organizational goals of the
agency or the Federal Government, and the efficiency of the service. It
is not an adversarial pre-termination hearing and does not transform a
probationary or trial period termination into an adverse action subject
to the procedures applicable to tenured employees.
Treating the meeting requirement as an independent appeal right
would substantially alter the function of the probationary and trial
period system. It would require OPM to adjudicate collateral disputes
over the scheduling, timing, content, and adequacy of meetings, even
where the employee does not allege partisan-political discrimination,
marital-status discrimination, or failure to follow procedures for a
termination based on pre-appointment reasons. That result would
recreate the type of procedural litigation E.O. 14284 sought to avoid
and would undermine the streamlined appellate framework established in
part 751.
OPM also notes that section 7(c) of E.O. 14284 provides that the
order is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity against the
United States, its agencies, officers, employees, or any other person.
OPM therefore does not construe the meeting requirement or the written-
notice requirement as independently enforceable appeal rights unless
OPM expressly provides such a right by regulation. OPM has chosen not
to do so here.
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 nonmanagerial 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 having OPM adjudicate these
appeals under its own authority.
OPM considered whether an agency's decision not to certify
continuation of an appointment, or failure to certify and finalize an
appointment, should be independently appealable beyond the grounds
specified in Sec. 751.101(c); as reflected in Sec. 751.101(d), OPM
declines to make it so. OPM views 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.\50\ 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.\51\
---------------------------------------------------------------------------
\50\ 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).
\51\ 5 CFR 752.401(b)(11); Scott v. Dep't of the Air Force, 113
MSPR 434, ] 9 (2010).
---------------------------------------------------------------------------
OPM also concludes 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(j) is inappropriate.
Consistent with OPM's view that the employee's appointment naturally
comes to an end as described
[[Page 49105]]
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.
Commenter 0516 argued that OPM failed to consider obvious and less
restrictive alternatives, including increasing MSPB funding,
streamlining procedures within MSPB, improving supervisor training and
guidance, and using enhanced case-management tools to improve
timeliness. Commenters 0488 and 0500 likewise asserted that OPM has not
provided sufficient data showing that the rule will produce cost
savings and has failed to consider less disruptive alternatives.
OPM disagrees. OPM has considered these alternatives, but concludes
that they either are outside OPM's authority, would not accomplish the
objectives of this rule, or are complementary measures rather than
substitutes for the final rule. The purpose of this rule is not merely
to reduce the number of days needed to process a case. It is to
implement E.O. 14284 and Civil Service Rule XI; to prescribe the
circumstances and procedures for limited probationary and trial period
appeals; to align the adjudicatory forum with OPM's responsibility for
administering the civil service rules governing probationary and trial
periods; and to establish a process proportionate to the narrow
regulatory issues that may be appealed.
Increasing MSPB funding, accelerating Board-member confirmations,
or otherwise addressing MSPB quorum and staffing issues are not
remedies OPM can adopt by regulation. MSPB appropriations are a matter
for Congress, and MSPB membership depends on nomination and
confirmation processes outside this rulemaking. Nor may OPM simply
direct MSPB to use different procedures for cases that remain before
MSPB. When OPM chooses to route appeals to MSPB, it must take MSPB's
statutory adjudicatory structure as it exists; OPM may not superimpose
its preferred procedures on MSPB adjudications. For that reason,
retaining MSPB as the venue while attempting to streamline MSPB
procedure is not a viable regulatory alternative for OPM.
OPM also considered whether improved supervisor training and
guidance could address the concerns underlying the rule. OPM agrees
that training and guidance are important, and OPM expects to continue
supporting agencies in using probationary and trial periods
effectively. But training addresses front-end management practices; it
does not address the separate question of what forum and procedures
should govern appeals after a covered action has occurred. Even with
better training, agencies will continue to take probationary and trial
period actions, and covered employees will continue to need a clear
process for raising the limited appealable claims preserved by this
rule. Training therefore complements the final rule, but it is not a
substitute for establishing the adjudicatory framework required after
E.O. 14284 and Civil Service Rule XI.
OPM likewise considered whether enhanced case-management tools
alone would be sufficient. The final rule incorporates several case-
management features, including electronic filing, defined filing
deadlines, required agency responses, required production of the agency
record, appellant replies, OPM authority to require additional
information, audits or investigations where necessary to determine a
material fact, and hearings where the written record is insufficient or
credibility issues make a hearing necessary and efficient. But case-
management tools would not, by themselves, resolve the mismatch between
the limited regulatory nature of probationary appeals and the more
elaborate MSPB procedures developed for broader statutory adverse-
action appeals. OPM has therefore adopted case-management tools as part
of the final rule, but declines to rely on case-management changes
alone.
OPM also disagrees that the rule lacks support because commenters
would prefer additional or different cost data. OPM's regulatory
analysis identifies the expected case volume, resource assumptions, and
costs associated with adjudicating these appeals at OPM, and compares
that process to the more resource-intensive adjudication previously
available through MSPB. In any event, the rule does not rest solely on
monetized cost savings. OPM also relies on non-monetized benefits,
including faster resolution of narrow regulatory appeals, greater
consistency in administration of Civil Service Rule XI, clearer routing
of claims between OPM and other forums, reduced duplication, and a
process better tailored to the limited issues available to covered
probationary appellants.
OPM further notes that the final rule is not the most disruptive
possible alternative. OPM is not eliminating all appeal rights for
probationary supervisors covered by subpart I. The final rule preserves
their appeals alleging partisan-political reasons, marital status, and
specified procedural defects where a termination is based in whole or
in part on conditions arising before appointment, while also
establishing such appeals for nonsupervisory employees in their
probationary period. It also preserves independent remedies before
EEOC, OSC, MSPB, Inspectors General, or other forums where an
independent legal basis for jurisdiction exists. And OPM has included
procedural safeguards, including a written record, agency record-
production requirements, appellant replies, reconsideration, Director
review before finality, public availability of final merits decisions
subject to applicable legal limits, and assignment of an administrative
law judge for appeals filed by OPM employees.
Accordingly, OPM declines to adopt the alternatives proposed by
Commenter 0516 and Commenters 0488 and 0500. Those alternatives either
fall outside OPM's authority, do not address the adjudicatory structure
governed by this rule, or are already reflected in part in the final
rule's streamlined case-management procedures. OPM concludes that the
final rule is a reasonable and appropriately tailored means of
implementing Civil Service Rule XI while preserving the limited
substantive appeal rights historically available to covered
probationary employees.
C. Impact
The final rule promotes greater accountability while making
efficient use of taxpayer resources. Although establishing an appeals
process where none currently exists necessarily imposes some cost,
streamlining appeals by reducing unnecessary legal processes to
adjudicate a narrow set of appealable issues and locating adjudicative
responsibilities at OPM holds those costs well below what reinstituting
the prior MSPB-style process would have entailed. Employees alleging
discrimination will continue, as under the current baseline, to file
complaints with the EEOC, and 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 charges pending at the
[[Page 49106]]
end of Fiscal Year 2024.\52\ 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.\53\
---------------------------------------------------------------------------
\52\ Equal Employment Opportunity Commission, Fiscal Year 2024
Annual Performance Report (Jan. 17, 2025), available at https://www.eeoc.gov/sites/default/files/2025-01/24-126_EEOC_2024_APR_508_1.16.25_508.pdf.
\53\ 29 CFR 1614.407.
---------------------------------------------------------------------------
Several commenters, such as 0434, 0475, 0527, and 0586, bring up
the perceived unfairness this rule creates for Federal employees. They
maintain that employees will have fewer tools to fight their
terminations and the process will be more confusing, which could lead
to employees filing in the wrong place and losing based on time
considerations.
OPM notes that this rule creates an appeals process for
probationary employees that does not currently exist. The rule thus
gives employees tools they would not otherwise possess to fight, e.g.,
unlawful politically-motivated terminations. OPM further notes that,
while the process for filing appeals and who will hear those appeals
may differ from the prior subpart H, the appeal structure remains
relatively the same. Furthermore, OPM will provide guidance to
managers, supervisors, and employees concerning these changes in order
to avoid the types of concerns voiced by commenters.
Several commenters expressed concern that the rule could be used to
permit agencies to separate probationary employees for reasons related
to lack of funding, lack of work, abolishment of positions, or
reorganization, while avoiding the statutory and regulatory
requirements governing reductions in force.
The rule does not authorize agencies to use probationary status to
evade reduction-in-force requirements. Reductions in force are governed
by 5 U.S.C. chapter 35 and 5 CFR part 351, including the rules
governing when those procedures apply. Nothing in this rule alters
those authorities, expands an agency's ability to separate employees
for reasons that constitute a reduction in force, or permits an agency
to characterize a reduction-in-force action as a probationary
separation in order to avoid applicable statutory or regulatory
requirements.
Rather, this rule addresses the scope and processing of appeals
from probationary separations. Agencies remain responsible for
determining and applying the correct legal authority for any separation
action, and the availability or limits of appeal rights under this rule
do not change the substantive requirements applicable to reductions in
force.
D. Costs
This final rule affects how a Federal employee may pursue an
administrative appeal from a covered probationary or trial period
action, including termination during a probationary or trial period,
assignment to a nonsupervisory or nonmanagerial position after failure
to complete a supervisory or managerial probationary period,
noncertification of continuation of an appointment, or failure to
certify and finalize an appointment. The final rule grants OPM
authority to adjudicate these appeals and removes MSPB authority to
adjudicate discrimination claims that previously could attach to
certain probationary appeals. Employees may continue to pursue
discrimination claims through the Federal-sector EEO process.
The appropriate baseline for this analysis is the current status
quo: following E.O. 14284 and the rescission of subpart H of part 315,
no administrative appeals process exists for covered probationary and
trial period terminations. Measured against that no-appeals baseline,
the final rule imposes the new adjudication and agency-defense costs of
the OPM appeal process it establishes. For the reasons explained below,
OPM estimates that the final rule will result in recurring annual costs
of approximately $1.5 million, and first-year costs of approximately
$2.75 million, including one-time implementation costs. Because
discrimination claims are already pursued through the Federal-sector
EEO process under the current baseline, EEO-processing costs are not
incremental costs of this rule.
1. Changes From the Proposed Analysis
OPM has updated the final cost analysis in several respects.
First, OPM updated labor rates from 2025 to 2026 rates because the
final rule will take effect after publication of the proposed rule. The
proposed rule used 2025 Washington, DC locality pay rates; this final
analysis uses 2026 rates.
Second, OPM revised the annual appeal-volume baseline. The proposed
rule cited 622 covered appeals in FY 2024 but calculated the annual
baseline using only FY 2021 through FY 2023 data, resulting in an
estimate of 457 appeals annually. In the final analysis, OPM includes
FY 2024 in the baseline because those appeals occurred before the post-
January 20, 2025 period that OPM treats as anomalous. OPM therefore
averages FY 2021 through FY 2024 appeal volumes: 486, 424, 461, and 622
appeals, respectively. This produces an annual baseline of
approximately 498 covered appeals. This assumption is more conservative
than the proposed rule's 457-appeal baseline and better reflects the
full scope of covered appeals identified in the proposed rule.
Third, OPM clarifies that the 498-appeal baseline is used as a
proxy for all covered actions under part 751. Historical MSPB data are
primarily organized around probationary termination appeals and
supervisory or managerial probationary-period appeals. Because
certification and finalization procedures under Civil Service Rule XI
are newly implemented, OPM does not yet have a separate historical
dataset for certification-related appeals. OPM expects those appeals
generally to arise from the same population of probationary or trial
period employees and to substitute for, rather than materially add to,
historical probationary termination appeal volumes.
Fourth, OPM corrected and clarified several component calculations.
The proposed rule's OPM adjudication discussion stated that each appeal
would require 30 hours of adjudicator time, while the proposed per-case
cost and annual estimate were consistent with 3 hours of adjudicator
time. In the final analysis, OPM uses 3 hours of adjudicator time,
which reflects the intended assumption and is consistent with the
proposed rule's explanation that most probationary appeals require
limited processing time because many are resolved on jurisdictional
grounds.
Fifth, OPM uses the same appeal-review rate for comparable MSPB and
OPM review stages. The proposed rule used an 11 percent MSPB petition-
for-review rate but applied that rate inconsistently. The final
analysis applies 11 percent to the revised 498-appeal baseline,
resulting in approximately 55 petitions for review or requests for
reconsideration annually.
Sixth, OPM has corrected the baseline used in the analysis. The
proposed rule implicitly measured costs and savings against the prior
MSPB process. That process, however, was rendered inoperative by E.O.
14284 before this rulemaking, and the correct baseline is the current
status quo, under which no administrative appeals process exists for
covered terminations. Measured against that baseline, the rule imposes
the costs of the new OPM adjudication process it establishes. The prior
MSPB process is discussed below for comparison purposes only, and EEO-
processing costs are not attributed to this rule because discrimination
claims are
[[Page 49107]]
already routed through the Federal-sector EEO process under the
baseline.
2. One-Time Implementation Costs
OPM estimates that this rulemaking will require individuals
employed by more than 80 Federal agencies, including MSPB and EEOC, to
review the final rule, modify regulations, policies, and procedures,
and train human resources practitioners, hiring managers, attorneys,
adjudicators, and other relevant personnel.
For purposes of this cost analysis, OPM assumes that Federal
employees performing this work will have an average salary equivalent
to GS-14, step 5, on the 2026 Washington, DC locality pay table, with
an hourly locality rate of $78.15. OPM assumes that the total dollar
value of labor, including wages, benefits, and overhead, equals 200
percent of the wage rate, resulting in a loaded hourly labor cost of
$156.30.
OPM estimates that implementation will require an average of 100
hours per affected agency. This results in one-time implementation
costs of approximately $15,630 per agency, or approximately $1.25
million governmentwide, assuming 80 affected agencies.
3. Recurring Costs and Savings
OPM estimates that approximately 498 covered appeals will be filed
annually. This estimate is based on MSPB appeal volumes for FY 2021
through FY 2024, including 486 appeals in FY 2021, 424 appeals in FY
2022, 461 appeals in FY 2023, and 622 appeals in FY 2024.
OPM does not include post-January 20, 2025 appeal volumes in the
recurring annual baseline. OPM continues to view that period as
anomalous and not sufficiently predictive of recurring annual appeal
volumes. At the same time, including FY 2024 in the final baseline
makes the estimate more conservative than the proposed rule's estimate
and avoids understating annual appeal volume.
4. EEO-Related Costs
Under both the current baseline and the final rule, discrimination
claims by covered probationary and trial period employees are pursued
through the appropriate Federal-sector EEO process. E.O. 14284
eliminated the prior MSPB probationary appeal--and with it the ability
to attach discrimination claims to such an appeal--before this
rulemaking; this rule does not change how discrimination claims are
routed. Accordingly, EEO-processing costs are not incremental costs of
this final rule. For transparency, OPM notes that the proposed rule
estimated total annual EEO-related processing costs of approximately
$3.0 million; to the extent such costs are incurred, they arise under
the baseline and would be incurred whether or not OPM finalized this
rule.\54\
---------------------------------------------------------------------------
\54\ OPM used Federal Workforce Data (FWD) information to
estimate grade levels of MSPB and EEOC personnel assigned to
adjudicate appeals covered by this rule.
---------------------------------------------------------------------------
Accordingly, OPM does not attribute EEO-processing costs to this
final rule. Any such costs arise under the current baseline--in which
discrimination claims are already pursued through the Federal-sector
EEO process--and would be identical whether or not OPM finalized this
rule.
Commenters argued that routing discrimination claims through the
EEO process may increase Federal court litigation. As an initial
matter, any change in the routing of discrimination claims resulted
from E.O. 14284 and the rescission of subpart H, not from this rule.
OPM does not quantify Federal court litigation costs because such costs
depend on future claimant choices, agency decisions, case outcomes,
exhaustion of administrative remedies, settlement behavior, and
judicial proceedings. OPM also notes that some judicial-review costs
may already exist under the baseline for discrimination claims attached
to MSPB mixed cases. OPM therefore does not have a reliable basis to
estimate incremental Federal court costs attributable to this final
rule.
5. Comparison: Adjudication Costs Under the Prior MSPB Process
Although the prior MSPB process is not the baseline for this
analysis, OPM provides the following estimates for comparison purposes,
to illustrate the relative cost of the process this rule establishes.
OPM estimates that under the prior MSPB process, each initial appeal
would have required 3 hours of MSPB administrative judge time at the
GS-15, step 5 level, 1 hour of GS-11, step 5 paralegal time, and 0.25
hours of chief administrative judge review at the GS-15, step 5 level.
Using loaded hourly labor costs of $183.85 for GS-15 time and $92.81
for GS-11 time, OPM estimates an MSPB initial-adjudication cost of
approximately $690 per appeal. For 498 appeals annually, this results
in annual MSPB initial-adjudication costs of approximately $344,000.
OPM estimates that petitions for review would be filed in
approximately 11 percent of appeals, or approximately 55 petitions
annually. OPM assumes that each petition for review would require 1
hour each from the MSPB Chairman and one Board Member,\55\ 2 hours from
one GS-15, step 5 attorney, and 6 hours from one GS-13, step 5
attorney. Using loaded hourly labor costs of $188.98 for each Board
official, $183.85 for the GS-15 attorney, and $132.27 for the GS-13
attorney, OPM estimates a cost of approximately $1,539 per petition, or
approximately $85,000 annually.
---------------------------------------------------------------------------
\55\ 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.
---------------------------------------------------------------------------
OPM also estimates agency defense costs under the prior MSPB
process. OPM assumes each initial appeal required 15 hours of GS-14,
step 5 agency attorney time, 4 hours of GS-11, step 5 paralegal time,
and 1 hour of GS-15, step 5 supervisory attorney time. OPM further
assumes each petition for review required 10 hours of GS-14, step 5
agency attorney time. Using loaded hourly labor costs of $156.30,
$92.81, and $183.85, respectively, OPM estimates total annual agency
defense costs under the prior MSPB process of approximately $1.53
million.
Accordingly, OPM estimates total annual costs under the prior MSPB
process of approximately $2.0 million, consisting of MSPB initial
adjudication, MSPB Board-level review, and agency defense costs. These
figures are presented for comparison purposes only; because the prior
MSPB process is no longer in effect, they are not baseline costs
avoided by this rule.
6. OPM Adjudication Costs Under the Final Rule
OPM estimates that each appeal adjudicated by OPM will require 3
hours of GS-13, step 5 adjudicator time, 1 hour of GS-11, step 5
paralegal time, and 1 hour of GS-14, step 5 supervisory adjudicator
time. Using loaded hourly labor costs of $132.27, $92.81, and $156.30,
respectively, OPM estimates a cost of approximately $646 per appeal.
For 498 appeals annually, OPM estimates annual initial OPM adjudication
costs of approximately $322,000.
OPM estimates that approximately 55 requests for reconsideration
will be filed annually. OPM assumes each request will require 4 hours
of GS-14, step 5 adjudications officer time and 1 hour of senior
executive review. Using loaded hourly labor costs of $156.30 and
$218.50, respectively, OPM estimates reconsideration costs of
approximately $844 per request, or approximately $46,000 annually.
OPM also estimates the incremental cost of Director review under
Sec. 751.108.
[[Page 49108]]
OPM expects that only a small number of cases, approximately 10
annually, will be reviewed by the Director before finality. For
purposes of this analysis, OPM assumes that each Director review will
require 1 hour of senior executive review and 1 hour of GS-14, step 5
adjudicatory support to prepare the record and decision materials.
Using loaded hourly labor costs of $218.50 and $156.30, respectively,
OPM estimates an incremental Director-review cost of approximately $375
per case, or approximately $4,000 annually.
OPM also estimates agency defense costs under the OPM process. OPM
assumes each initial appeal will require 10 hours of GS-14, step 5
agency attorney time, 4 hours of GS-11, step 5 paralegal time, and 1
hour of GS-15, step 5 supervisory attorney time. OPM further assumes
each request for reconsideration will require 8 hours of GS-14, step 5
agency attorney time. Using loaded hourly labor costs of $156.30,
$92.81, and $183.85, respectively, OPM estimates total annual agency
defense costs under the OPM process of approximately $1.12 million.
Accordingly, OPM estimates total annual costs under the OPM
adjudication process of approximately $1.5 million, consisting of OPM
initial adjudication, OPM reconsideration, Director review, and agency
defense costs.
Summary of Recurring Annual Costs
----------------------------------------------------------------------------------------------------------------
Prior MSPB process
Cost category (comparison only) Final OPM process
----------------------------------------------------------------------------------------------------------------
Initial adjudication............................................... $344,000 $322,000
Petition/reconsideration and Director review....................... 85,000 50,000
Agency defense costs............................................... 1,530,000 1,124,000
--------------------------------------------
Subtotal: adjudication and defense costs....................... 1,959,000 1,496,000
EEO-related costs (not attributable to this rule; see section 4)... ..................... ....................
--------------------------------------------
Total recurring annual cost.................................... 1,959,000 1,496,000
----------------------------------------------------------------------------------------------------------------
Based on these estimates, and measured against the current no-
appeals baseline, OPM estimates recurring annual costs of approximately
$1.5 million, consisting of OPM adjudication, reconsideration, Director
review, and agency defense costs. In the first year, OPM also estimates
one-time implementation costs of approximately $1.25 million, for total
first-year costs of approximately $2.75 million. For comparison, the
prior MSPB process would have cost approximately $2.0 million annually
in adjudication and defense costs; the OPM process established by this
rule is thus approximately $463,000 less costly per year than
reinstituting an MSPB-style process would have been.
7. Response to Cost-Related Comments
Commenters 0421, 0501, 0503, 0584, 0599, and 0602 argued that
moving discrimination claims to the EEO process may increase costs,
including potential costs associated with Federal court litigation. As
explained above, EEO-processing costs are not incremental costs of this
rule: discrimination claims are routed through the Federal-sector EEO
process under the current baseline, and this rule does not change that
routing. OPM has not quantified Federal court litigation costs because
those costs depend on future decisions by employees, agencies, EEOC
administrative judges, and courts, and because any change in the
routing of discrimination claims resulted from E.O. 14284 rather than
from this rule.
OPM also recognizes that the final analysis reaches a different
quantified conclusion than the proposed rule. The proposed rule
measured the rule against the prior MSPB process and characterized the
rule as likely producing net cost savings. The final analysis instead
measures the rule against the current no-appeals baseline and estimates
recurring annual costs of approximately $1.5 million. OPM concludes
that providing covered employees a limited appeal--including for claims
of partisan-political or marital-status discrimination--is worth those
costs, and that the streamlined OPM process holds those costs well
below what an MSPB-style process would have entailed. The final rule
provides administrative review of covered probationary and trial period
appeals where none currently exists, clarifies claim routing, provides
a record-based process tailored to the limited issues appealable under
part 751, avoids the higher adjudication and agency-defense costs that
reinstituting the prior MSPB process would have entailed, and promotes
faster finality for employees and agencies. Several benefits, including
reduced uncertainty, clearer procedures, better allocation of
adjudicatory resources, and improved agency ability to manage
probationary and trial period appointments, are difficult to quantify
but are substantial.
OPM further notes that, even if EEO-processing costs were
considered, the proposed rule's estimate would have substantially
overstated any effect of this rule. That estimate assumed that every
appellant would seek EEO counseling, even though not every appellant
will allege discrimination, and employees may pursue EEO counseling and
complaints under the current baseline regardless of this rule. Because
discrimination claims are routed through the Federal-sector EEO process
under the baseline in any event, the final analysis does not attribute
those costs to this rule.
Accordingly, OPM concludes that the final rule will impose
quantified recurring annual costs of approximately $1.5 million, and
first-year costs of approximately $2.75 million including
implementation costs, while avoiding the higher costs of an MSPB-style
process and producing important non-quantified benefits from a
streamlined, OPM-administered appeal process.
E. Benefits
First, and most fundamentally, the final rule provides covered
probationary and trial period employees with a limited administrative
appeal--including for claims that a termination was based on partisan
political reasons or marital status--where the current baseline affords
no appeal at all. By creating a forum to adjudicate allegations of
politically motivated or marital-status-based terminations, the rule
strengthens the nonpartisan character of the civil service and promotes
fairness, while keeping those appeals appropriately cabined to the
narrow grounds historically available. In addition, OPM expects the
final rule to produce further non-quantified benefits
[[Page 49109]]
for employees, agencies, and the Federal Government, including prompt
resolution of covered appeals, clearer claim routing, avoidance of
unnecessary litigation burden, timely corrective action where
warranted, and better use of probationary and trial periods as
assessment tools.
Second, the final rule will provide employees with a prompt and
clear process for resolution of covered appeals--a process that does
not exist at all under the current baseline. A probationary or trial
period termination, a reassignment following failure to complete a
supervisory or managerial probationary period, a noncertification
decision, or a failure to certify and finalize an appointment may have
significant professional and financial consequences for the affected
individual. Timely adjudication benefits employees by providing prompt
clarity as to whether the action will be sustained or corrected. If the
agency erred, the final rule allows corrective relief to be ordered--
relief that is not available at all under the current baseline. If the
agency action is sustained, the individual receives earlier certainty
for purposes of employment planning, benefits decisions, and future
career choices.
Third, prompt adjudication benefits the Government by reducing
avoidable remedial exposure. Where an agency action is found to be
erroneous, delay may increase potential back pay, interest, attorney-
fee exposure, and administrative disruption. A more prompt decision
limits the period of uncertainty and allows the agency to implement any
required corrective action sooner. This benefit serves both affected
individuals and agencies by reducing the time between the challenged
action and final administrative resolution.
Fourth, the final rule provides review without imposing an
unnecessary litigation burden. Had OPM instead reinstituted the prior
MSPB process, even appeals involving narrow probationary or trial
period issues could have required substantial agency time for
litigation preparation, motion practice, discovery disputes, hearing
preparation, and related activity. The final rule instead adopts a
record-based OPM process tailored to the limited issues that remain
appealable. The rule requires the agency to produce the agency record,
permits the appellant to respond, and allows OPM to require additional
information or conduct further proceedings when necessary and
efficient. This approach preserves meaningful review while avoiding
routine use of costly procedures in cases that can be resolved on the
written record.
Fifth, the final rule promotes clearer and more efficient claim
routing. Appeals before OPM under part 751 will be limited to the
grounds specified in the rule, including claims involving partisan
political reasons or marital status and claims that an agency failed to
follow required procedures for terminations based in whole or in part
on pre-appointment reasons. Other statutory claims, including
discrimination claims within the jurisdiction of the EEOC, remain
available in the forums Congress or applicable law has designated. This
structure reduces confusion over forum, separates limited probationary
appeal issues from collateral statutory claims, and allows specialized
forums to adjudicate matters within their respective jurisdiction.
Sixth, the final rule supports more effective use of probationary
and trial periods. Congress and the civil service rules have long
treated probationary and trial periods as a continuation of the
examining and assessment process. These periods allow agencies to
determine whether a new employee, supervisor, or manager has
demonstrated the performance, conduct, judgment, and suitability
necessary for continued Federal service. OPM expects that a focused,
streamlined appeal process--rather than one modeled on the prior MSPB
procedures--will provide accountability without the litigation-driven
hesitation associated with those procedures, and will allow supervisors
and managers to devote more time to training, mentoring, observing, and
evaluating employees during the period in which those assessments are
most important.
Seventh, OPM expects the rule to improve the efficiency of the
service. When supervisors are able to make timely, evidence-based
decisions during probationary or trial periods, agencies are better
positioned to retain employees who meet mission needs and address
situations in which continued employment does not advance the
efficiency of the service. This benefits the public by helping agencies
maintain a capable workforce and by reducing the long-term costs
associated with retaining employees whose performance, conduct, or
supervisory capacity has not been demonstrated during the probationary
or trial period.
Eighth, the final rule provides transparency and accountability
appropriate to the limited appeal rights at issue. OPM will issue
written decisions, provide reconsideration, allow Director review
before finality, and make final merits decisions publicly available
subject to privacy, privilege, law-enforcement-sensitive information,
and other legal limits. These features will promote consistency,
provide guidance to agencies and employees, and permit public
understanding of how OPM applies the final rule over time.
OPM recognizes that some of these benefits are difficult to
quantify with precision. The absence of precise quantification does not
make the benefits less substantial. Faster finality, reduced
uncertainty, clearer claim routing, more efficient use of supervisory
and human-resources time, and better use of probationary and trial
periods are significant operational benefits that support the final
rule.
Accordingly, OPM concludes that the final rule will produce
benefits beyond the quantified savings reflected in the cost analysis.
The rule preserves administrative review of the limited matters
appealable under part 751, provides a more focused and timely
adjudicatory process, reduces unnecessary litigation burden, allows
prompt correction of agency error where warranted, and supports the
effective use of probationary and trial periods to promote the
efficiency of the Federal service.
VI. 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 the
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 affected by the change in venue for
appeals and complaints of discrimination, the procedures employed by
OPM and EEOC will not cause a significant economic impact on these
small entities.
B. Regulatory Review
The Office of Information and Regulatory Affairs in the Office of
Management and Budget has designated this as a significant regulatory
action under E.O. 12866 section 3(f). Accordingly, OPM has examined the
impact of this rule as required by E.O.s 12866 and 13563, which direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select
[[Page 49110]]
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health, and safety effects,
distributive impacts, and equity). A regulatory impact analysis must be
prepared for rules that have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities. This rulemaking does not reach that
threshold. This rule is not considered an E.O. 14192 regulatory action.
As explained in the cost analysis above, measured against the current
no-appeals baseline, the rule imposes quantified recurring annual costs
of approximately $1.5 million, which OPM concludes are justified by the
rule's quantified and non-quantified benefits.
C. Severability
If any of the provisions of this rule as finalized are held to be
invalid or unenforceable by its terms, or as applied to any person or
circumstance, it shall be severable from its respective section(s) and
shall not affect the remainder thereof or the application of the
provision to other persons not similarly situated or to other
dissimilar circumstances. In enforcing civil service protections and
merit system principles, OPM will comply with all applicable legal
requirements.
D. 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 E.O. 13132
(Aug. 10, 1999), it is determined that this rule does not have
sufficient Federalism implications to warrant preparation of a
Federalism Assessment.
E. Civil Justice Reform
This regulation meets the applicable standards set forth in
subsections 3(a) and (b)(2) of E.O. 12988 (Feb. 5, 1996).
F. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits before
issuing any rule that would impose spending costs on State, local, or
Tribal governments in the aggregate, or on the private sector, in any
one year of $100 million in 1995 dollars, updated annually for
inflation. That threshold is currently approximately $206 million. This
rulemaking will not result in the expenditure by State, local, or
Tribal governments, in the aggregate, or by the private sector, in
excess of the threshold. Thus, no written assessment of unfunded
mandates is required.
G. Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires most final rules to be submitted to Congress
before taking effect. OPM will submit to Congress and the Comptroller
General of the United States a report regarding the issuance of this
rule before its effective date. The Office of Information and
Regulatory Affairs in the Office of Management and Budget has
determined that this rule is not a major rule as defined by the CRA (5
U.S.C. 804).
H. Paperwork Reduction Act
This final rule contains information collection requirements within
the meaning of the Paperwork Reduction Act of 1995, as amended (44
U.S.C. chapter 35). The final rule establishes procedures for filing
and adjudicating appeals before OPM under part 751, including
electronic filing, appellant submissions, representative information,
requests for e-filing exemptions, agency responses, agency-record
submissions, agency certifications, appellant replies, requests for
reconsideration, and related case-processing submissions.
The information collected will be used to receive, docket, serve,
process, adjudicate, and maintain records of appeals from covered
actions under part 751, including terminations during probationary or
trial periods, assignments to nonsupervisory or nonmanagerial positions
following failure to complete a supervisory or managerial probationary
period, noncertification of continuation of an appointment, and failure
to certify and finalize an appointment. The final rule requires use of
the electronic filing system identified on OPM's website, except where
OPM grants an exemption for good cause.
OPM has submitted a request for a new information collection to the
Office of Management and Budget for this system (see 91 FR 46802 (July
24, 2026)).
OPM will not conduct or sponsor, and a person is not required to
respond to, an information collection unless it displays a currently
valid OMB control number.
To the extent the final rule requires Federal agencies to submit
agency responses, agency records, certifications, or other documents in
their official capacity, those submissions are not collections from
``persons'' for purposes of the Paperwork Reduction Act. However,
submissions from appellants, representatives, or other non-agency
parties may constitute information collections subject to the Paperwork
Reduction Act.
List of Subjects
5 CFR Part 11
Government employees.
5 CFR Part 230
Civil defense, Government employees.
5 CFR Parts 315 and 432
Government employees.
5 CFR Parts 751 and 752
Administrative practice and procedure, Government employees.
Signing Statement
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.
Jerson Matias,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends 5
CFR parts 11, 230, 315, 432, 751 and 752 as follows:
PART 11--PROBATIONARY AND TRIAL PERIODS (RULE XI)
0
1. The authority citation for part 11 continues to read as follows:
Authority: 5 U.S.C. 3301, 3302; E.O. 14284, 90 FR 17729.
Sec. 11.2 [Amended]
0
2. Amend Sec. 11.2, in paragraph (a)(2), by removing the phrase
``Reinstatement Priority List'' and adding in its place the phrase
``Reemployment Priority List''.
0
3. Amend Sec. 11.5 by redesignating paragraphs (e) through (g) as
paragraphs (i) through (k) and adding new paragraphs (e) through (h) to
read as follows:
Sec. 11.5 Completion of probationary or trial period.
* * * * *
(e) Each agency head shall designate, in writing, one or more
agency officials responsible for evaluating the continued
[[Page 49111]]
employment of employees serving an initial probationary or trial period
in the Federal service. The agency head should limit such designations
to officials who can properly assess the needs and interests of the
agency, the organizational goals of the agency or the Federal
Government, and the efficiency of the service.
(f) At least 60 days before the end of an employee's initial
probationary or trial period, an official designated under paragraph
(e) of this section shall meet with the employee to discuss the
employee's performance and conduct, based in part on input from the
employee's supervisor; the needs and interests of the agency; and
whether the employee's continued employment would advance the public
interest, the organizational goals of the agency or the Federal
Government, and the efficiency of the service.
(g) Within 30 days before the end of an employee's initial
probationary or trial period, the agency head or an official designated
under paragraph (e) of this section shall determine, consistent with
this section and other applicable law, whether to finalize the
employee's appointment to the Federal service or terminate the
employee's service.
(h) Before finalizing an employee's appointment to the Federal
service at the conclusion of the probationary or trial period, the
agency head or an official designated under paragraph (e) of this
section must certify in writing that the employee's continued
employment will advance the public interest.
* * * * *
PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT
0
4. 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
5. Amend Sec. 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
6. 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 issued
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, 1987 Comp., p. 264.
Subpart B--The Career-Conditional Employment System
0
7. 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
8. 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 reasons 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
9. The authority citation for part 432 is revised to read as follows:
Authority: 5 U.S.C. 4303, 4305; E.O. 14284, 90 FR 17729.
0
10. Amend Sec. 432.102 by:
0
a. Revising paragraphs (f)(1), (2), and (3);
0
b. Redesignating paragraphs (f)(4) through (13) as paragraphs (f)(5)
through (14); and
0
c. Adding a new paragraph (f)(4).
The revisions and addition read as follows:
Sec. 432.102 Coverage.
* * * * *
(f) * * *
(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
11. Add part 751 to read as follows:
PART 751--PROBATIONARY AND TRIAL PERIOD APPEALS
Sec.
751.101 Right to appeal.
751.102 Procedures for submitting appeals.
751.103 Form and content of probationary or trial period appeal and
agency response.
751.104 Employee representatives.
751.105 Adjudication of appeals.
751.106 Sanctions and protective orders.
751.107 Requests for reconsideration of an initial decision.
751.108 Review by the OPM Director.
751.109 Final decision.
Authority: 5 U.S.C. 1103, 1302, 3301, 3302, 3321, 5596; E.O.
14284, 90 FR 17729; 5 CFR 11.6.
[[Page 49112]]
Sec. 751.101 Right to appeal.
(a) Right of appeal. (1) Subject to paragraphs (b) through (d) of
this section, an employee may appeal the following actions to the
Office of Personnel Management (OPM):
(i) Termination during a probationary or trial period required
under 5 CFR part 11 or other authority administered by OPM;
(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;
(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) An individual serving a probationary or trial period does not
have a right to appeal their termination under this part if the
individual has completed 1 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), or (f), or Sec.
752.401(b) or (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 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:
(i) Termination not required by statute;
(ii) Assignment to a nonsupervisory or nonmanagerial position under
Sec. 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 in 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 termination 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 paragraph (c) of this section.
(e) Exclusive appeal procedure. The procedures in this part are the
sole means of appealing a covered action under paragraph (a) of this
section, but do not otherwise preclude an employee from filing a
complaint, appeal, or other matter within the independent jurisdiction
of the Equal Employment Opportunity Commission, an Inspector General,
the Merit Systems Protection Board, the Department of Labor Veterans'
Employment and Training Service, 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 appointed:
(1) To the competitive service as described in 5 CFR 11.2 who has
not completed 1 year of current continuous service under other than a
temporary appointment limited to 1 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
of this chapter 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 identified on OPM's
website. Unless a party demonstrates good cause and seeks approval from
OPM, 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 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 e-filing 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 unless
exempted under paragraph (c)(7) of this section for good cause.
(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
[[Page 49113]]
properly filing all pleadings, evidence, and other documents. OPM may
strike a document where an e-filer repeatedly fails to follow these
instructions following receipt of 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, a party's
representative, or 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 of e-filing registration by a party
or representative will not be considered good cause for staying a case.
(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
received on the date the electronic submission is timestamped by OPM
based on the Eastern Time Zone.
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 after service 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. The agency
record of the action shall include, at a minimum:
(1) All documents considered or relied upon by the agency in taking
the action;
(2) The notice of action and effective date;
(3) Documents showing the appellant's appointment, service history,
and probationary or trial period status;
(4) Any written certification, noncertification, or failure-to-
certify record under 5 CFR part 11;
(5) Any documents supporting the agency's basis for the action
under appeal; and
(6) A certification that the agency has produced the complete
record considered by the deciding official or otherwise relied upon by
the agency.
(i) The agency must produce the complete agency record to OPM.
(ii) The agency must serve the appellant with the agency record,
except that the agency may redact or withhold information from the copy
served on the appellant to the extent necessary to comply with the
Privacy Act, applicable legal privileges, classified information or
national security requirements, protective orders issued by OPM, and
any other applicable limitation on disclosure required by law.
(c) Reply. An employee may file a reply to an agency response to an
initial appeal within 15 calendar days of the date the agency submits
its 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 unless the basis rests on
information first disclosed in the agency response or unless OPM grants
leave for good cause.
(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, subject to the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law.
(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, subject to the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law. 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.
(a) Designation of representative. 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.
(b) Federal employee representatives; official time and
reimbursement. 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.
(c) Disallowance of representative. 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 the representative's activities would
cause a conflict of interest or position.
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. OPM personnel assigned to adjudicate an appeal under
this part shall be insulated from officials who participated personally
and substantially in the challenged personnel action or provided case-
specific advice concerning that action. OPM adjudicators shall not
consider material ex parte communications
[[Page 49114]]
concerning the merits of an appeal. If such a communication occurs, OPM
will place a summary of the communication in the record and provide the
parties a reasonable opportunity to respond, unless disclosure is
prohibited by law. In addition, no OPM 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 assign 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 and
to issue an initial decision. 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, a clear error of law, or a material factual
error that affected the outcome of the appeal. For purposes of this
paragraph (b), the term harmful procedural irregularity means an
irregularity in the application of procedures that was likely to have
caused the administrative law judge to reach a conclusion different
from the one he or she would have reached in the absence or cure of the
irregularity. The assignment of an administrative law judge under this
paragraph (b) or under paragraph (a) of this section does not make 5
U.S.C. 554, 556, or 557 applicable to an appeal under this part except
to the extent those provisions are independently required by law or
expressly incorporated in this part.
(c) Ascertainment of facts. OPM may require either party to provide
additional information, and it may audit or investigate an agency's
action in the course of adjudicating an appeal if it determines, in its
sole discretion, that the existing record is insufficient to resolve a
material issue within OPM's jurisdiction, and that the audit or
investigation is reasonably likely to produce information material to
resolving that issue. 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 in resolving an
appeal. For purposes of this section, the phrase 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 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
the employee of pay and benefits while the initial decision is pending
reconsideration.
Sec. 751.106 Sanctions and protective orders.
(a) Cease-and-desist directive. OPM may issue a protective order or
cease-and-desist directive to protect the integrity of the adjudicatory
process, prevent threats, intimidation, targeted harassment, improper
witness contact, disclosure of protected personal information, or
misuse of nonpublic information obtained through 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 order must file such request in
accordance with Sec. 751.102(c), and must include a statement of
reasons justifying the request, together with any relevant documentary
evidence. Any protective order issued by OPM must be no broader than
reasonably necessary and must not restrict lawful communications
protected by law.
(b) Failure to comply with an OPM directive. When a party to an
appeal fails to comply with an order issued under paragraph (a) of this
section, 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.
(c) Scope of sanctions. Any sanction issued under paragraph (b) of
this section must be proportionate, causally related to the violation,
and no broader than necessary to protect the adjudicatory process.
Sec. 751.107 Requests for reconsideration of an initial decision.
(a) Upon a timely 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;
[[Page 49115]]
(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, on the Director's own initiative and before a
decision becomes final under Sec. 751.109, reopen and reconsider any
initial decision or reopened and reconsidered decision. In determining
whether to exercise this authority, the Director may consider, among
other things, whether the decision may contain clear legal error; may
rest on an erroneous finding of material fact; may involve an issue of
exceptional importance, an issue affecting the administration of the
civil service laws, rules, regulations, or OPM policy, or a conflict
among OPM decisions; or otherwise warrants Director review. This
section does not create a right to request Director review. Upon
reopening and reconsideration, the Director may take any action
described in Sec. 751.107(c).
Sec. 751.109 Final decision.
(a) The initial decision becomes OPM's final decision 30 calendar
days after issuance unless, before that time, a party timely requests
reopening and reconsideration under Sec. 751.107 or the Director
reopens the decision under Sec. 751.108.
(b) A timely request under Sec. 751.107 suspends finality. If OPM
denies or dismisses the request without reopening the initial decision,
the initial decision becomes OPM's final decision 30 calendar days
after issuance of the denial or dismissal, unless the Director reopens
the initial decision under Sec. 751.108 before that time. If OPM
grants the request, a reopened and reconsidered decision becomes OPM's
final decision 30 calendar days after issuance unless the Director
reopens that decision under Sec. 751.108 before that time.
(c) An untimely request under Sec. 751.107 does not suspend or
otherwise affect finality. If OPM accepts and grants an untimely
request for good cause, any resulting reopened and reconsidered
decision becomes final as provided in paragraph (b) of this section.
(d) A decision by the Director pursuant to Sec. 751.108 that
disposes of the appeal is OPM's final decision and is effective upon
issuance. If the Director remands the appeal or directs further
proceedings, any resulting decision becomes final under this section.
(e) There is no further right of appeal of a final decision of OPM.
(f) Subject to applicable legal limits, including requirements
protecting privacy, privileged information, protected personal
information, law-enforcement-sensitive information, and other
information that may not lawfully be disclosed, OPM shall maintain a
publicly accessible website containing final decisions issued under
this part that address a party's claim on the merits. Any final merits
decision not made publicly available because of such legal limits shall
be made available upon request to 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 the Federal agency or office involved in the
proceeding who has a need to know.
PART 752--ADVERSE ACTIONS
0
12. 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
13. Amend Sec. 752.201 by revising paragraphs (b)(1) and (2) to read
as follows:
Sec. 752.201 Coverage.
* * * * *
(b) * * *
(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
14. Amend Sec. 752.401 by revising paragraphs (c)(1), (c)(2)(i), and
(d)(10) and (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;
* * * * *
(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. 2026-15654 Filed 7-31-26; 8:45 am]
BILLING CODE 6325-39-P