The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
INTERESTED TERMINATED DOCKET NUMBER
PROBATIONARY EMPLOYEES - CB-1205-25-0025-U-1
USAID,
Petitioners,
v.
OFFICE OF PERSONNEL DATE: June 18, 2026
MANAGEMENT,
Agency,
and
U.S. AGENCY FOR INTERNATIONAL
DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra D’Agostino , Esquire, Ricardo Pitts-Wiley , Esquire,
Joanna Friedman , Esquire, and Heather White , Esquire,
Washington, D.C., for the petitioners.
D. Black , Esquire, Eyana Esters , Esquire, Michele Bloom , Esquire,
Allison Kidd-Miller , Esquire, and Alex Ehler , Esquire,
Washington, D.C., for the Office of Personnel Management.
Alpana K. Gupta , Esquire, Washington, D.C.,
for the U.S. Agency for International Development.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
FINAL ORDER
The petitioners, interested probationary employees terminated from the
U.S. Agency for International Development (USAID), request that the Board
review under 5 U.S.C. § 1204(f) whether 10 Federal agencies, including USAID,
invalidly implemented Office of Personnel Management (OPM) regulations when
they terminated the petitioners and thousands of similarly situated employees
during their probationary periods on and shortly after February 14, 2025. 2 For the
reasons discussed below, we DENY the request for regulation review.
BACKGROUND
On January 20, 2025, OPM issued a memorandum to agency heads
directing them to identify “all employees on probationary periods, who have
served less than a year in a competitive service appointment, or who have served
less than two years in an excepted service appointment” and to “promptly
determine whether those employees should be retained at the agency.” Request
File (RF), Tab 1 at 18-20. On January 28, 2025, OPM sent an email to all Federal
2
The request for regulation review was submitted on behalf of 55 interested individuals
who were terminated during their probationary periods from 1 of 10 employing
agencies: Department of Commerce, Department of Energy, Department of Health and
Human Services, Department of Homeland Security, U.S. Agency for International
Development, Department of the Interior, Department of Transportation, Department of
the Treasury, Department of Veterans Affairs, and Department of Agriculture. Request
File (RF), Tab 1 at 1, 15-16. The Board grouped the interested individuals by
employing agency and docketed separate requests for regulation review for each group,
resulting in a separate regulation review request for each agency alleged to have
invalidly implemented the regulations. See RF, Tab 2 at 1. The instant request,
Interested Terminated Probationary Employees – USAID v. OPM and USAID , MSPB
Docket No. CB-1205-25-0025-U-1, has been docketed on behalf of interested
individuals terminated from USAID, as identified by Exhibit 1 of the request for
regulation review. Id.; RF, Tab 1 at 15-16.
3
employees titled “Fork in the Road,” offering a “deferred resignation” program
and stating that “the majority of federal agencies are likely to be downsized,”
including through reductions in force and furloughs. Id. at 22-24. Approximately
2 weeks later, on February 14, 2025, the Chief Human Capital Officers (CHCO)
Council emailed the agency CHCOs and Deputy CHCOs, stating that “[w]e have
asked that you separate probationary employees that you have not identified as
mission-critical no later than end of the day Monday, 2/17” and attaching a
template letter. Id. at 5, 26-27. According to the petitioners, “[b]eginning that
very day, February 14, 202[5], upon receipt of this email, agencies terminated the
interested persons and thousands of similarly situated probationers.” Id. at 6.
The petitioners noted that the termination notices were all similar and cited, as
examples, notices from four different agencies issued from February 14-20, 2025.
Id. at 6-9.
On March 7, 2025, the petitioners filed the instant request for regulation
review, arguing that the agencies, including USAID, invalidly implemented OPM
regulations at 5 C.F.R. §§ 315.803(a), .804(a) in conducting the government -wide
probationary terminations. RF, Tabs 1, 16. These provisions, as they existed at
the time of the challenged terminations, provided: 3
The agency shall utilize the probationary period as fully as possible
to determine the fitness of the employee and shall terminate his or
her services during this period if the employee fails to demonstrate
fully his or her qualifications for continued employment.
5 C.F.R. § 315.803(a);
Subject to § 315.803(b), when an agency decides to terminate an
employee serving a probationary or trial period because his work
performance or conduct during this period fails to demonstrate his
3
On April 24, 2025, President Trump issued Executive Order 14284 declaring the
regulations at 5 C.F.R. part 315, subpart H, which includes 5 C.F.R. §§ 315.803-.804,
“inoperative and without effect.” Exec. Order No. 14284, Strengthening Probationary
Periods in the Federal Service, 90 Fed. Reg. 17729 (Apr. 24, 2025). OPM formally
eliminated these provisions by final rule on June 24, 2025. Strengthening Probationary
Periods in the Federal Service, 90 Fed. Reg. 26727-01, 26729 (June 24, 2025).
4
fitness or his qualifications for continued employment, it shall
terminate his services by notifying him in writing as to why he is
being separated and the effective date of the action. The information
in the notice as to why the employee is being terminated shall, as a
minimum, consist of the agency’s conclusions as to the inadequacies
of his performance or conduct.
5 C.F.R. § 315.804(a).
The petitioners argue that the agencies violated these provisions by:
(1) failing to conduct the individualized assessments required by 5 C.F.R.
§ 315.803(a) to determine whether each probationary employee “fail[ed] to
demonstrate fully his or her qualifications for continued employment”; and
(2) terminating probationary employees for reasons not permitted under 5 C.F.R.
§ 315.804(a)—namely, to downsize the Federal workforce, rather than for an
individual’s “work performance or conduct during this period [that] fails to
demonstrate his fitness or his qualifications for continued employment.” RF,
Tab 1 at 4-6, Tab 16 at 7-13. The petitioners further argue that the en masse
termination of probationary employees amounted to an unlawful reduction in
force (RIF), taken without regard to the requirements of 5 C.F.R. part 351. RF,
Tab 1 at 4-8. Lastly, they argue that the agencies’ actions constituted a
prohibited personnel practice under 5 U.S.C. § 2302(b)(12). 4 Id. at 9-10.
In their oppositions to the petitioners’ request for regulation review, OPM
and USAID argue that the request must be dismissed for lack of jurisdiction or, in
4
Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to take personnel
action that violates a law, rule, or regulation implementing, or directly concerning, a
merit system principle. The petitioners assert that 5 C.F.R. §§ 315.803-.804 and
5 C.F.R. part 351 are regulations that directly concern the merit system principles,
including 5 U.S.C. § 2301(b)(5) (“The Federal work force should be used efficiently
and effectively”); (b)(6) (“Employees should be retained on the basis of the adequacy of
their performance, inadequate performance should be corrected, and employees should
be separated who cannot or will not improve their performance to meet required
standards”); and (b)(8)(A) (“Employees should be (A) protected against arbitrary
action, personal favoritism, or coercion for partisan political purposes”).
5
the alternative, for failure to meet the Board’s prudential criteria for review. 5 RF,
Tabs 12-13. The petitioners, however, concede that USAID has canceled the
challenged probationary terminations and provided all the relief they were
seeking. RF, Tab 16 at 4-5.
ANALYSIS
Under 5 U.S.C. § 1204(f), the Board has original jurisdiction to review
rules and regulations issued by OPM and to declare such provisions invalid on
their face or invalidly implemented by any agency. Tabradillo v. Office of
Personnel Management, 93 M.S.P.R. 257, ¶ 2 (2003). The Board will declare a
regulation “invalidly implemented by any agency, if the Board determines that
such provision, as it has been implemented by the agency through any personnel
action taken by the agency or through any policy adopted by the agency in
conformity with such provision, has required any employee to violate
section 2302(b).” 5 U.S.C. § 1204(f)(2)(B).
The petitioners seek regulation review pursuant to 5 U.S.C.
§ 1204(f)(1)(B), which provides that an “interested person” may request
regulation review. The term “interested person” has not been defined in the
statute or in the relevant regulations. Jones v. Office of Personnel Management,
5
The Office of Special Counsel (OSC) submitted an amicus brief recommending that
the Board deny the petitioners’ request for review. RF, Tab 7. The petitioners moved
to strike the amicus brief because OSC lacked the authority to submit the brief under
5 U.S.C. § 1212(h)(1) and was not invited to submit it by the Board. RF, Tab 8. We
agree that OSC does not have a statutory right under section 1212(h)(1) to submit an
amicus brief in this administrative proceeding. See 5 U.S.C. § 1212(h)(1) (providing
that OSC has the right to appear as an amicus curiae “in any action brought in a court of
the United States related to section 2302(b)(8) or (9)” (emphasis added)). In addition,
OSC’s amicus brief is not permitted under the Board’s regulations because the Board
did not request it, and OSC did not request (or receive) permission to submit an amicus
brief. See 5 C.F.R. § 1203.13(b)-(c) (providing that, in a request for regulation review,
the Board will consider pleadings in addition to the request, a response to the request, a
reply, motions, and oppositions to those motions, “only if the Board requests them, or if
it grants a request that it consider them.”). Accordingly, we do not consider OSC’s
amicus brief.
6
107 M.S.P.R. 115, ¶ 8 (2007); 5 C.F.R. §§ 1203.1-.22. However, the Board has
interpreted the plain meaning of that term to signify that the petitioning person
must have an interest in having the Board review the regulation or rule in
question because it has some applicability to him or her. Jones, 107 M.S.P.R.
115, ¶ 8. Thus, the question of whether a petitioner is an “interested person” is a
“standing” issue. Id., ¶ 9 (citing Senior Executives Association v. Office of
Personnel Management, 67 M.S.P.R. 643, 648 (1995)).
As noted above, in their reply, the petitioners acknowledge that, based on
declarations provided by agency officials in Maryland v. U.S. Department of
Agriculture, No. 25-cv-00748 (D. Md.), “it appears these agencies [including
USAID] have all rescinded the probationary termination of probationary
employees done en masse on or shortly after February 14, 2025.” RF, Tab 16
at 4-5. The petitioners note that the USAID official’s district court declaration
states that USAID has reinstated all 270 of the terminated probationary
employees. Id. at 5 n.7. Additionally, the petitioners concede that, “to the extent
the agencies have rescinded in full the terminations of probationary employees
executed en mass [sic] on or shortly after February 14, 2025, the agencies have
provided the relief sought in the [request for regulation review].” RF, Tab 16
at 13.
Since the record reflects, and the petitioners concede, that the probationary
terminations underlying this request for regulation review have been rescinded,
the alleged invalid implementation of the regulations is no longer applicable to
the petitioners. As such, they do not qualify as “interested persons” entitled to
request Board review of OPM’s regulations under 5 U.S.C. § 1204(f)(1)(B). We
therefore find that the petitioners do not have standing to request regulation
review in this case, and their petition must be denied on that basis. Cf. Jones,
107 M.S.P.R. 115, ¶ 8.
7
ORDER
The petitioners’ request for regulation review is denied. Title 5 of the
Code of Federal Regulations, section 1203.12(a) (5 C.F.R. § 1203.12(a)).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.