Streamlining Probationary and Trial Period Appeals

Federal RegisterAug 3, 2026

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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

employeeaccountability@opm.gov

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.

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.

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 § 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 § 315.806 and the current § 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.

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.

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

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

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

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.”

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.”

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.

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.”

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.

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.

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

United States

that probationers lacked any cognizable legal rights under the rules or the Pendleton Act.

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.”

The Act also imposed certain procedural requirements on removals, including advance notice and an opportunity to respond in writing.

However, Congress did not establish employment protections for probationary employees.

Ruggles

United States,

45 Ct. Cl. 86 (1910).

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)).

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.

Regarding probationers, the Commission quoted from

Ruggles

that probationers have no cognizable right to their employment

and that the Lloyd-La Follette Act's protections did not apply to probationers at all.

Over the next decade, the Commission would repeatedly cite the

Ruggles

decision and its assessment of the Lloyd-La Follette Act.

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.

Id.

at 96.

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.

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.

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.

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.

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.”

However, nothing in these E.O.s or implementation by the CSC attempted to expand application of those protections to probationers.

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.

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

employees.

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).

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 Trump

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

Larkin,

421 U.S. 35, 47, 58

(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

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

Ohio,

273 U.S. 510, 523, 532 (1927);

Withrow,

421 U.S. at 47;

Caperton

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 § 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

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.

Mathews

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.

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.

Cleveland Bd. of Educ.

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

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 § 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.

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 § 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 § 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 § 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

issues. The adjudicator must determine timeliness, jurisdiction, appealability, and, where appropriate, whether the appellant has established one of the limited claims permitted by § 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 § 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 § 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 § 751.107. If the Director reopens and reconsiders a decision under § 751.108, the Director may take any action available under § 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

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

Comm'r,

501 U.S. 868, 881-82 (1991);

Lucia

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

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.

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 § 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 § 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 § 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 § 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 § 751.101(c). Conversely, if the

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 § 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 § 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

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

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.

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.

See, e.g., Elgin

Dep't of the Treasury,

567 U.S. 1 (2012);

Mastriano

FAA,

714 F.2d 1152 (Fed. Cir. 1983);

Sagar

Lew,

211 F. Supp. 3d 262 (D.D.C., 2016);

Walker

Merit Sys. Prot. Bd.,

594 F. App'x 984 (Fed. Cir. 2014);

González

Vélez,

864 F.3d 45 (1st Cir. 2017).

See Tocci

Napolitano,

791 F. Supp. 2d 944 (D. Or., 2011);

Ahuruone

U.S. Dep't of the Interior,

312 F. Supp. 3d 1 (D.D.C., 2018);

Swartz

Internal Revenue Serv.,

702 F. Supp. 780 (W.D. Mo. 1988);

Ladson

Jue,

2015 WL 3755918 (E.D. Va., 2015);

Chamat

Paulson,

2009 WL 764989 (S.D. Cal., 2009);

Peter B.

C.I.A.,

620 F. Supp. 2d 58 (D.D.C. 2009);

Gonzalez

Manjarrez,

2013 WL 152177 (W.D. Tex. Jan. 4, 2013),

aff'd,

558 F. App'x 350 (5th Cir. 2014);

Toro

Napolitano,

2013 WL 4102158 (S.D. Cal. Aug. 13, 2013);

Radakovic

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

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 § 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

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.

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

FLRA,

737 F.3d 273, 280 (4th Cir. 2013).

See, e.g., 5 U.S.C. 7501(1); Goss

Dep't of the Air Force,

131 F. App'x 721, 724 (Fed. Cir. 2005);

Mastriano

FAA,

714 F.2d 1152, 1155 (Fed. Cir. 1983);

see also United States Dep't of Justice

FLRA,

709 F.2d 724, 730 (D.C. Cir. 1983);

Bartholomew

United States,

740 F.2d 526, 530 (7th Cir. 1984);

United States Postal Serv.

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

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

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.

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 § 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 § 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

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 § 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 § 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

FLRA,

737 F.3d at 279-80;

NTEU

FLRA,

848 F.2d at 1276 (D.C. Cir. 1988);

Dep't of Justice

FLRA,

709 F.2d 724 (D.C. Cir. 1983);

NTEU,

67 FLRA 24, 26 (2012),

aff'd sub nom. NTEU

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

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 § 751.101(e) that “[a] party cannot obtain judicial review of a decision under this part.” It is also providing in § 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

under former § 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.

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.

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

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

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

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

Dep't of Transp.,

555 F.3d 1009, 1010 (D.C. Cir. 2009)).

United States

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

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

Holder

that such a right may only be stripped by express exclusion in statute.

See Kucana

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

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

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

Lucas,

462 U.S. 367, 368 (1983). See also

Krafsur

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

James,

416 F.3d 63, 67 (D.C. Cir. 2005) (Roberts, J.);

Dotson

Griesa,

398 F.3d 156, 163 (2d Cir. 2005) (“the CSRA creates an integrated scheme of

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

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

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

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

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

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

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

Jenkins

and

McLaughlin Chiropractic Associates, Inc.

McKesson Corp.

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.

2020 WL 1066531 (N.D. Ohio Mar. 5, 2020),

aff'd sub nom. Wesson

Shoop,

17 F.4th 700 (6th Cir. 2021).

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

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.

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

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

EPA,

597 U.S. 697, 721 (2022).

Commenters' reliance on

West Virginia

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 term

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