The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
INTERESTED TERMINATED DOCKET NUMBER
PROBATIONARY EMPLOYEE - CB-1205-25-0029-U-1
DVA,
Petitioner,
v.
OFFICE OF PERSONNEL DATE: June 18, 2026
MANAGEMENT,
Agency,
and
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra D’Agostino , Esquire, Ricardo J.A. Pitts-Wiley , Esquire,
Joanna Friedman , Esquire, and Heather White , Esquire,
Washington, D.C., for the petitioner.
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.
Diane Tardiff , Esquire, Bedford, Massachusetts,
for the Department of Veterans Affairs.
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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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
Erica Skelly , Esquire, Akron, Ohio,
for the Department of Veterans Affairs.
Matthew O. Kortjohn , Esquire, Dayton, Ohio,
for the Department of Veterans Affairs.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
FINAL ORDER
The petitioner, an interested probationary employee terminated from the
Department of Veterans Affairs (DVA), requests that the Board review under
5 U.S.C. § 1204(f) whether 10 Federal agencies, including DVA, invalidly
implemented Office of Personnel Management (OPM) regulations when they
terminated the petitioner 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
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
Employee – DVA v. OPM and DVA, MSPB Docket No. CB-1205-25-0029-U-1, has been
docketed on behalf of the interested individual terminated from DVA identified by
Exhibit 1 of the request for regulation review. Id.; RF, Tab 1 at 15-16.
3
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 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 petitioner, “[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 petitioner 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 petitioner filed the instant request for regulation
review, arguing that the agencies, including DVA, invalidly implemented OPM
regulations at 5 C.F.R. §§ 315.803(a), .804(a) in conducting the government -wide
probationary terminations. RF, Tabs 1, 17. 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.
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
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
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 petitioner argues 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 18 at 7-13. The petitioner further argues 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,
he argues that the agencies’ actions constituted a prohibited personnel practice
under 5 U.S.C. § 2302(b)(12). 4 Id. at 9-10.
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 petitioner asserts 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
In its opposition to the petitioner’s request for regulation review, OPM
argues that the request must be dismissed for lack of jurisdiction or, in the
alternative, for failure to meet the Board’s prudential criteria for review. 5 RF,
Tab 14. DVA additionally argues that the request must be dismissed as moot
because it canceled the February 2025 probationary terminations pursuant to
district court orders and reinstated all affected employees, including the petitioner.
RF, Tab 15 at 5-8, 9-13. The petitioner concedes that “it appears” DVA has
canceled the challenged probationary terminations and provided all the relief he
was seeking. RF, Tab 18 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, ¶ 3 (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).
5
The Office of Special Counsel (OSC) submitted an amicus brief recommending that the
Board deny the petitioner’s request for review. RF, Tab 9. The petitioner 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 10. 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
The petitioner seeks 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, 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, DVA stated in its response to the petitioner’s request for
regulation review that the probationary terminations at issue have been canceled,
including the petitioner’s termination. RF, Tab 15. In support, DVA provided a
declaration under penalty of perjury from the Assistant Secretary for Human
Resources and Administration/Operations, Security, and Preparedness attesting
that, as of March 21, 2025, DVA had canceled the terminations of all affected
probationary employees, reinstated them to a paid status, and was in the process of
returning them to duty. Id. at 174-76. DVA additionally provided evidence
showing that the petitioner was returned to duty and provided back pay and
benefits, and the reference to his termination removed from his office personnel
record. Id. at 8; 521-36. In reply, the petitioner acknowledges 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
DVA] have all rescinded the probationary terminations of probationary employees
done en masse on or shortly after February 14, 2025.” RF, Tab 18 at 4-5. The
petitioner notes that the DVA official’s district court declaration states that DVA
has reinstated 1,683 of terminated probationary employees. Id. at 5 n.5.
Additionally, the petitioner concedes that, “to the extent the agencies have
7
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].” Id. at 13.
Since the record reflects, and the parties appear to agree, that the
probationary termination underlying this request for regulation review has been
rescinded, the alleged invalid implementation of the regulations is no longer
applicable to the petitioner. As such, he does not qualify as an “interested person”
entitled to request Board review of OPM’s regulations under 5 U.S.C.
§ 1204(f)(1)(B). We therefore find that the petitioner does not have standing to
request regulation review in this case, and his petition must be denied on that basis.
Cf. Jones, 107 M.S.P.R. 115, ¶ 8.
ORDER
The petitioner’s 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.