Streamlining Probationary and Trial Period Appeals

In response to the proposed rule, OPM received 632 comments during the 30-day public comment period from a variety of individuals (including current and former civil servants, scientists, and members of Congress) and organizations, such as those representing science and technology, national and local unions, and Federal agencies.\2\ Of the 632 comments received, 618 were posted, and 2 were not posted because they contained threats to the President and members of the Administration or contained sensitive personally identifiable information from commenters. The remaining 12 comments are attributed to individual commenters who indicated on their comment submission that their comment represented a specific number of submissions. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, the comments ranged from ardent support of the proposed regulation to categorical rejection of it. Some of the comments supported the proposed regulation or were neutral or mixed, while many opposed it.

\2\ Comments cited are available in the docket for this rulemaking and can be accessed at https://www.regulations.gov/comment/OPM-2025-0013-nnnn, where “nnnn” is the comment number.

OPM found many of the comments helpful, and it has made several adjustments to the proposed rule in response to comments, as explained below. Among other changes, the final rule adds more detailed procedures for agency certification at the end of the probationary or trial period, specifies the minimum contents of the agency record, allows employees to raise new allegations in reply when they are based on information first disclosed by the agency or when good cause exists, and strengthens safeguards insulating OPM adjudicators from officials involved in the challenged action. The final rule also clarifies that OPM's audit and investigation authority is directed to material issues that cannot be resolved on the existing record, and it revises the protective-order provision to ensure that any order is no broader than reasonably necessary and does not restrict lawful protected communications.

The comments focused on probationers potentially losing rights under the new OPM appeals process as compared with the former MSPB process that E.O. 14284 rescinded, as well as the requirement that discrimination claims within the jurisdiction of the EEOC be filed with the EEOC. Commenters who supported the proposed rule noted that probationers' rights were already limited prior to the proposal, so providing a complicated and burdensome appeal process under MSPB jurisdiction is not practical nor does it support managers and supervisors removing probationers for inefficient service to the public.

In the next section, we address the background for these regulatory

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.

\3\ Commenter 0348 notes that much of the “Background” section of the proposed rule was identical or nearly so to an Office of Special Counsel brief filed with the MSPB. OPM agrees that a citation should be provided and does so now. See Brief for the U.S. Office of Special Counsel as Amicus Curiae, Commerce v. U.S. Office of Pers. Mgmt., CB-1205-25-0021-U-1 (Merit Sys. Prot. Bd. filed May 14, 2025), available at https://www.osc.gov/~assets/docs/osc-amicus- brief-cb-1205-25-0021-u-1-et-al_.pdf.

The concept of a probationary or trial period in the U.S. civil service dates to the Pendleton Civil Service Act of 1883 (Pendleton Act). The Pendleton Act required “that there shall be a period of probation before any absolute appointment or employment aforesaid.” \4\ The new Civil Service Commission created by the Pendleton Act reflected a similar understanding of probation. In its first annual report in 1884, the Commission characterized the probationary period as lasting “six months before any absolute appointment can be made. At the end of this time the appointee goes out of the service unless then reappointed.” \5\ Two years later, the Commission wrote in its third annual report that probation was “another test under the Merit System” which “must be considered before we pass final judgment on the examinations, of which they are an essential part.” If at the end of the probationary period “the appointing officer is not . . . willing to make an unconditional appointment,” the probationer would not remain in the service.\6\ In 1897 President William McKinley signed E.O. 101, Amending Civil Service Rules Regarding Removal from Service, adding a number 8 to Rule II that stated: “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department, or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.”

\4\ Pendleton Civil Service Act, ch. 27, sec. 2, 22 Stat. 403, 404 (1883), available at https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/22/STATUTE-22-Pg403a.pdf.

\5\ U.S. Civil Service Commission, First Annual Report of the United States Civil Service Commission to the President 29 (1884), available at https://babel.hathitrust.org/cgi/pt?id=nnc1.cu09006737&seq=9.

\6\ U.S. Civil Service Commission, Third Annual Report of the United States Civil Service Commission to the President 36 (1886), available at https://babel.hathitrust.org/cgi/pt?id=njp.32101073361022&seq=40.

In 1910, the Court of Claims explained in the case of Ruggles v. United States that probationers lacked any cognizable legal rights under the rules or the Pendleton Act.\7\ With the enactment of the Lloyd-La Follette Act of 1912, Congress created the first legislative codification of protection against removal for civil servants. In doing so, Congress did not create new protections out of whole cloth; it largely codified the removal protections that had already developed as a matter of Executive practice under President McKinley's 1897 executive order and its successors. The Act established “[t]hat no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service.” \8\ The Act also imposed certain procedural requirements on removals, including advance notice and an opportunity to respond in writing.\9\ However, Congress did not establish employment protections for probationary employees.

\7\ Ruggles v. United States, 45 Ct. Cl. 86 (1910).

\8\ Lloyd-La Follette Act, Act of Aug. 24, 1912, ch. 389, sec. 6, 37 Stat. 555, 555, amended by Act of June 19, 1948, ch. 502, sec. 1, 62 Stat. 354, 354 (formerly codified at 5 U.S.C. 652(a)).

\9\ Id.

After the passage of the Lloyd-La Follette Act and the court's decision in Ruggles, the CSC took the opportunity to clarify that the removal rules first established in 1897 should never have been treated as creating any serious limits on removing civil servants from employment.\10\ Regarding probationers, the Commission quoted from Ruggles that probationers have no cognizable right to their employment \11\ and that the Lloyd-La Follette Act's protections did not apply to probationers at all.\12\ Over the next decade, the Commission would repeatedly cite the Ruggles decision and its assessment of the Lloyd-La Follette Act.\13\

\10\ See 29th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1912 (1913), p. 21, available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152033&seq=11.

\11\ Id. at 96.

\12\ Id. at 112.

By 1922, the Commission expressed concerns that too few probationers were being terminated and that agencies were not adequately using the probationary period as a screening mechanism.\14\ Consistent with that concern, over the next couple of decades, the Commission maintained the view, embodied in its regulations, that probationers retained virtually no protection from removal at all.

\13\ See, e.g., U.S. Civil Service Commission, 30th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1913 91 (1914), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152041&seq=97; U.S. Civil Service Commission, 31st Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1914 79, 95 (1915), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924054241355&seq=223; U.S. Civil Service Commission, 32nd Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1915 72, 89 (1915), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152066&seq=9; U.S. Civil Service Commission, 33rd Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1916 48, 66 (1916), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152074&seq=112; U.S. Civil Service Commission, 38th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1921 52, 75 (1921), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152124&seq=8.

\14\ U.S. Civil Service Commission, 39th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1922 xxi (1922), available at https://babel.hathitrust.org/cgi/pt?id=coo.31924103152140&seq=9 (“The proportion of failures on probation seems small to the commission, being only about one-half of 1 per cent. This may indicate that appointing officers do not in all cases fully scrutinize the conduct and capacity of the probationers and perform the duty of dropping those found unsuitable.”).

The Veterans' Preference Act of 1944 expanded civil service protections beyond the Lloyd-La Follette Act to preference eligible Federal employees, but it explicitly excluded probationers.\15\ President John F. Kennedy later expanded these protections beyond preference eligibles. As the CSC recognized, “[w]ith the issuance of Executive Orders 10987 and 10988 on January 17, 1962, a new era of greatly expanded appeals rights for employees was opened.” \16\ However, nothing in these E.O.s or implementation by the CSC attempted to expand application of those protections to probationers.

\15\ Veterans' Preference Act of 1944, Public Law 78-359, sec. 14, 58 Stat. 387, 390 (codified as amended in scattered sections of 5 U.S.C.), available at https://tile.loc.gov/storage-services/service/ll/uscode/uscode1940-00900/uscode1940-009005017/uscode1940-009005017.pdf.

\16\ U.S. Civil Service Commission, 79th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1962 15 (1962), available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910338&seq=237&q1.

For a brief period of time starting in 1958, the CSC instituted a rule granting broader appeal rights to probationary

employees.\17\ But in 1962, the Commission revoked these regulations. 27 FR 4755, 4759 (May 19, 1962). In the following year, the Commission issued new regulations establishing much more limited appeal rights for probationary employees that, until E.O. 14284, permitted appeals based on improper discrimination or terminations for matters arising before employment. 28 FR 9973, 10052 (Sept. 14, 1963).

\17\ U.S. Civil Service Commission, 75th Annual Report of the United States Civil Service Commission for the Fiscal Year Ended June 30, 1958 4 (1958), available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112109910361&seq=495. See also 5 CFR 9.103 (1960), available at https://www.loc.gov/item/cfr1960002-T5CIP9/.

The passage of the Civil Service Reform Act of 1978 (CSRA) formed the basis of the current law governing probationary employment. The relevant language, unchanged since 1978, provides the President with substantial authority to issue regulations establishing the conditions in which an appointment in the competitive service becomes final. 5 U.S.C. 3321(a). The Senate Committee for Government Affairs explained in its report on the CSRA the importance of preserving executive discretion to remove probationers as “an extension of the examining process to determine an employee's ability to actually perform the duties of the position. It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period.” S. Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978).

Courts emphasized this language in holding that Congress purposefully denied probationary employees statutory appeal rights. See, e.g., United States v. Connolly, 716 F.2d 882, 886 (Fed. Cir. 1983); Nat'l Treasury Emps. Union v. FLRA, 848 F.2d 1273, 1275 (D.C. Cir. 1988). As the United States Court of Appeals for the District of Columbia Circuit explained in Dep't of Justice v. Federal Labor Relations Authority, Congress chose not to extend the same employment protections afforded tenured employees to probationary employees because it “recognized and approved of the inextricable link between the effective operation of the probationary period and the agency's right to summary termination.” 709 F.2d 724, 728 (D.C. Cir. 1983). Similarly, courts elsewhere recognized Congress' intentional limitation on protections for probationary employees. See, e.g., Nat'l Treasury Emps. Union v. FLRA, 737 F.3d 273, 276 (4th Cir. 2013); Yates v. Dep't of the Air Force, 115 F. App'x 57, 59 (Fed. Cir. 2004); Jones v. United States DOJ, 111 F. Supp. 3d 25, 30 n.5 (D.D.C. 2015).

Concerns that agencies have not been effectively utilizing probationary periods have continued into the 21st century. In 2005, the MSPB reported to the President and to Congress that Federal agencies were failing to use the probationary period to assess and remove probationers.\18\ In conducting a survey of agency supervisors, the MSPB found that, “even though supervisors are aware that the probationer's appointment is not final, supervisors tend to treat their probationers as fully appointed Federal employees, with all the rights and responsibilities that implies.” \19\ The MSPB identified that the failure of agencies to maximize the probationary period is a cultural problem pervasive across all levels. The problem appeared to be a systemic one, as “supervisors expressed frustration at the lack of agency support for the full use of the probationary period, and even a number of probationers were perturbed by what they saw as agencies' failure to use the probationary period to remove marginal and poor performers.” \20\ The MSPB reaffirmed the 2005 report in a 2019 Research Brief, acknowledging that “MSPB found that supervisors are sometimes reluctant to remove a probationer who is not performing well in the position, even though it is easier to remove a probationer than an employee with a final appointment.” \21\

\18\ See, generally, Merit Systems Protection Board, The Probationary Period: A Critical Assessment Opportunity, Report to the President and the Congress of the United States (Aug. 2005), available at https://www.mspb.gov/studies/studies/The_Probationary_Period_A_Critical_Assessment_Opportunity_(2005)_2245 55.pdf.

\19\ Id. at 33.

\20\ Id.

\21\ Merit Systems Protection Board, Remedying Unacceptable Employee Performance in the Federal Civil Service, Research Brief 4 (June 18, 2019), available at https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.

In 2015, the Government Accountability Office (GAO) issued a report regarding Federal workforce performance.\22\ GAO interviewed several chief human capital officers in Federal agencies and found that “[a]gencies may not be using the supervisory probationary period as intended.” \23\ The GAO found that “supervisors are often not making performance-related decisions about an individual's future likelihood of success with the agency during the probationary period.” \24\ This inefficiency typically happened for two reasons: “(1) the supervisor may not know that the individual's probationary period is ending, and (2) the supervisor has not had enough time to observe the individual's performance in all critical areas of the job.” \25\ The GAO concluded that the probationary period needed to be “more effectively used by agencies” and that “improving how the probationary period is used could help agencies more effectively deal with poor performers.” \26\

\22\ Government Accountability Office, Federal Workforce: Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance, GAO-15-191 (Feb. 2015), available at https://www.gao.gov/assets/gao-15-191.pdf.

\23\ Id. at 9.

\24\ Id. at 11.

\25\ Id.

\26\ Id.

To this day, poor performance in the civil service has not been adequately addressed. OPM's 2024 Federal Employee Viewpoint Survey indicated that 40 percent of Federal employees reported that poor performers in their units would usually “[r]emain in the work unit and continue to underperform[.]” \27\ The next highest percentage of respondents--21 percent--answered “Do Not Know[.]” \28\ Only 47 percent agreed that “[i]n my work unit, differences in performance are recognized in a meaningful way.” \29\ 27 percent disagreed with that claim.\30\

\27\ Office of Personnel Management, Federal Employee Viewpoint Survey Dashboard, “Core Performance (Q16) In my work unit poor performers usually,” at 7 (2024), available at https://www.opm.gov/fevs/reports/opm-fevs-dashboard/.

\28\ Id.

\29\ Id. at 6, “Core Question Bank,” Question No. 17.

\30\ See id. (Reporting Positive versus Negative “Perception” Score).

Commenters scrutinized reports cited by OPM in the proposed rule. Commenter 0337 argued that the rule does not consider policy changes already implemented to address problems with the probationary periods including new OPM training and planning on performance management. Commenter 0341 argued that agencies' failure to use probationary periods is a management and training issue, not grounds for an overhaul. Commenter 0443 added that reports showing these periods are not effectively utilized by managers are not connected to the existence of impartial and independent review under the MSPB.

OPM acknowledges these comments but disagrees that training and management guidance alone are sufficient. OPM agrees that agencies should improve supervisory training and performance-management practices, and the rule does not preclude those efforts. But the record also shows that

existing processes have not produced adequate results. In OPM's view, the costs, formality, and litigation risk associated with MSPB appeals have contributed to supervisors' reluctance to make full use of probationary and trial periods. Additional training may improve supervisory confidence, but it does not address the procedural incentives that discourage timely action during the very period designed to assess an employee's fitness for continued Federal service.

The rule therefore preserves the limited legal status of probationary and trial period employees while creating a more appropriate review mechanism for the narrow claims that remain appealable. Such employees will continue to receive neutral, record- based review by OPM's Merit System Accountability and Compliance (MSAC) office, and the final rule includes safeguards insulating adjudicators from officials who participated in the challenged personnel action or provided case-specific advice concerning that action. This approach maintains meaningful review for legally cognizable claims while supporting the intended function to which E.O. 14284 restored probationary and trial periods: allowing agencies to make timely, evidence-based decisions about whether continued employment advances the efficiency of the service.

Commenters 0449 and 0516 suggested that the rule misreads the 2024 FEVS since it applies to all Federal workers rather than exclusively employees in their probationary or trial periods; most Federal workers did not respond; and a majority did not agree that poor performers usually remain in their work unit and continue to underperform. Further, they suggest it is outdated since OPM cancelled the 2025 FEVS. Commenter 0580 said that agencies should require another OPM FEVS to collect data on OPM policies from 2025, and commenter 0581 noted FEVS showed improvements in most scores since a dip between 2020 and 2021 attributable to the COVID-19 pandemic.

OPM is not required to conduct a new study to address the persistent problems found in performance management and utilization of the probationary period. OPM acknowledges that the FEVS does not concentrate solely on probationary employees and that other initiatives have been taken by agencies to improve employee performance and accountability, however these initiatives do not correct the specific issues addressed by the rule such as the lengthy appeals process through adjudication from the MSPB. Additionally, OPM believes that it is not sufficient that most Federal employees did not find poor performance unaddressed in their work unit. The fact that FEVS showed that a significant number of employees do not believe that poor performance is adequately addressed in their work unit helps demonstrate the need for a more efficient adjudication process for the limited number of claims that are appropriately appealable following a probationary termination.

President Trump sought to address this longstanding issue when he signed E.O. 14284, “Strengthening Probationary Periods in the Federal Service,” on April 24, 2025. 90 FR 17729 (Apr. 24, 2025). E.O. 14284 established Civil Service Rule XI to govern Federal agencies' use of probationary and trial periods. Under Rule XI, agencies must assess and certify their employees serving under probationary or trial periods before finalizing their appointments to the Federal service. Rule XI provides four non-mandatory criteria for the agency head, or designee, to consider in determining whether a probationary employee's continued employment advances the public's interest. Where an agency determines not to certify an employee's continued employment, the employee's appointment expires before the end of the employee's tour of duty on the last day of their probationary or trial period. The agency also retains the discretion to dismiss them prior to the expiration of their probationary or trial period.

Section 4 of E.O. 14284 also revoked the termination and appeal procedures under subpart H of part 315 of this chapter. These procedures, which applied upon initial appointment to a career- conditional competitive service position, included the requirement for agencies to provide, at a minimum, written notice of the agency's conclusions as to the inadequacies of an employee's performance or conduct when terminating an employee during a probationary period; procedures and bases for appealing a termination during a probationary period; and the authority of the MSPB to adjudicate appeals. The rescission of subpart H meant that employees could not appeal any terminations from a probationary or trial period. However, through Civil Service Rule 11.6 (5 CFR 11.6) the President delegated authority to the Director of OPM to issue rulemaking on the circumstances and procedures for employees to appeal their termination from a probationary or trial period.

Prior to E.O. 14284, OPM established through regulation the circumstances and procedures for appealing terminations during an employee's probationary period. See 44 FR 48951-52 (Aug. 21, 1979). Congress defined the term “employee” for purposes of identifying who could appeal certain adverse actions to the MSPB to exclude employees serving a probationary or trial period. See 5 U.S.C. 7511(a)(1). However, Congress also granted, inadvertently or not,\31\ appeal rights to employees in the (1) competitive service who complete one year of current continuous service under other than a temporary appointment limited to one year or less; (2) excepted service who are preference eligibles that completed one year of current continuous service in the same or similar positions in either an Executive Agency or the United States Postal Service or Postal Rate Commission; or (3) excepted service who complete two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment as defined by OPM regulations in 5 CFR 213.104(a)(1).\32\ For employees who did not meet the definition of employee, they could not appeal, for example, a termination from the Federal service. However, the CSC and, later, OPM exercised its authority to prescribe the circumstances in which an employee serving a probationary period in the competitive service could appeal to the CSC or MSPB, respectively.\33\

\31\ Merit Systems Protection Board, Navigating the Probationary Period after Van Wersch and McCormick (Sept. 2006), available at https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.

\32\ See 5 U.S.C. 7511(a)(1)(A)(ii), (a)(1)(B)(ii), (a)(1)(C)(ii); see also Mitchell v. MSPB, 741 F.3d 81 (Fed. Cir. 2014) (holding that “temporary appointment” refers to the regulatory definition, which currently limits a temporary appointment to one year or less).

\33\ See, e.g., 33 FR 12422-23; 40 FR 15380; 44 FR 48951-52; 55 FR 29339; 79 FR 43922.

Likewise, Congress did not establish through statute the circumstances under which supervisors and managers failing their probationary period have the right to appeal their assignment to nonsupervisory or nonmanagerial positions. Nor did Congress specify that the MSPB adjudicate such appeals. However, OPM exercised its regulatory authority to authorize the MSPB to adjudicate such appeals that raise discrimination based on partisan political reasons or marital status. See 44 FR 48951-52 (Aug. 21, 1979).

The final rule establishes limited grounds for employees serving a probationary period in the competitive service and employees in the excepted service covered by 5 CFR part 307

serving a trial period to appeal their terminations, or their employing agencies' failure to finalize their appointments during those periods. Under these regulations, such employees can challenge their terminations or their agencies' failure to finalize their appointments for alleged discrimination based on partisan political reasons or marital status. These limited grounds of appeal reflect the historical principle that probationary and trial periods serve as a critical evaluation phase for new Federal employees, and thus that agencies should enjoy great flexibility in separating employees serving probationary or trial periods. Some non-veteran excepted service employees may qualify for appeal rights under other regulatory or legal provisions not covered by this rule. It should also be noted that excepted service employees serving in an appointment in the excepted service outside of part 307 of this chapter did not have such appeal rights unless otherwise entitled by statute, and OPM is maintaining that policy. Providing limited grounds of appeal also ensures agencies adhere to the Merit System Principles and corrects agency actions taken contrary to these principles consistent with OPM's statutory authority. See 5 U.S.C. 1103(a)(7), (c)(2)(F), 1104(b)(2); see also 5 CFR 5.3, 10.2-10.3.

Several commenters such as 0010, 0047, 0231, and 0620 argued that the authority to hear appeals from probationary employees is legally assigned to the MSPB. They believed this jurisdiction was established by Congress in the CSRA. According to these commenters, moving this authority from MSPB to OPM would be unlawful unless Congress amended the law to specifically allow OPM to take over this responsibility. To support their argument, they reference Chapters 12 and 77 of Title 5 of the United States Code and other sections of the CSRA.

The commenters' reading of the CSRA is incorrect. As an initial matter, the comments rest on an inaccurate premise: the CSRA itself confers no appeal rights on probationary employees, and the limited appeal rights formerly available under subpart H of part 315 were created by regulation, not statute. The CSRA gives OPM extensive discretion in regulating probationary periods. Pursuant to 5 U.S.C. 1301, “[t]he Office of Personnel Management shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service.” Under 5 U.S.C. 1104(a)(1), “the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management.” Further, OPM “shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.” 5 U.S.C. 1104(b)(1). And the OPM Director has the responsibility “to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations,” and “execut[e], administer[ ], and enforc[e] . . . the civil service rules and regulations of the President and the Office and the laws governing the civil service.” 5 U.S.C. 1104(b)(3), 1103(a)(5). Under 5 U.S.C. 3321(a), the authority to prescribe rules, regulations, and directives governing probationary periods rests with the President, and the President has delegated to OPM, consistent with 5 U.S.C. 1104(a), the authority to prescribe the circumstances and procedures for probationary and trial period appeals through E.O. 14284 and Civil Service Rule XI. Moreover, if OPM did not exercise that delegated authority, appeals would not revert to the MSPB; covered employees would simply have no appeals process at all. Courts have recognized that Congress charged OPM with the authority to establish conditions of employment including procedural protections. Nat'l Treasury Emps. Union, 737 F.3d at 277-78. This includes rights to challenge removals in violation of these protections. FLRA, 709 F.2d at 725 n. 3.

When crafting the CSRA, Congress gave the President, acting through the Director of OPM, authority to create a regulatory right for terminated probationary employees to appeal their termination. See 5 U.S.C. 3321(a), 1104(a). Nowhere in the CSRA did Congress extend statutory appeal rights to probationary employees seeking to reverse a termination. In fact, as noted in the proposed rule, the Senate Committee for Government Affairs stressed the importance of not providing such a right of appeal because the agency's discretion to remove probationers was “an extension of the examining process to determine an employee's ability to actually perform the duties of the position.” S. Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978). Congress went so far as to explicitly exclude probationary employees from the definition of “employee” for purposes of 5 U.S.C. Chapter 75. See 5 U.S.C. 7501(1). Commenter 0134 noted this significant statutory distinction.

Unlike OPM's authority to regulate probationer appeals, which derives from the President's statutory authority under 5 U.S.C. 3321(a), delegated to OPM pursuant to 5 U.S.C. 1104(a) through E.O. 14284 and Civil Service Rule XI, the MSPB's jurisdiction to hear termination appeals from a probationary or trial period employee is derived from regulation. Specifically, the Federal Circuit has explained that “[t]he Board's jurisdiction to review adverse personnel action taken against probationary government employees is extremely narrow. In fact, there is no statutory basis for jurisdiction.” Goss v. Dep't of the Air Force, 131 F. App'x 721, 724 (Fed. Cir. 2005). Moreover, “[t]he only cognizable right of appeal by a probationary employee to the MSPB is contained in the regulation previously mentioned, 5 CFR 315.806.” Mastriano v. FAA, 714 F.2d 1152, 1155 (Fed. Cir. 1983). Congress authorized MSPB to be that venue if, and only if, OPM designated such appeals be heard there. 5 U.S.C. 7701(a). That designation was a policy choice, selected by virtue of regulation, (subpart H of part 315 of title 5, Code of Federal Regulations). Pursuant to Executive Order 14284, that regulation has been repealed.

Further, in Civil Service Rule XI, the President designated OPM as the body which defines the “circumstances under and procedures by which employees terminated from a probationary or trial period may appeal such termination.” 5 CFR 11.6(a). Civil Service Rule XI further specifies that, “[e]xcept as otherwise required by law, such appeals shall be the sole and exclusive means of appealing terminations during probationary or trial periods.” 5 CFR 11.6(b).

In the CSRA, Congress did not direct that the MSPB have jurisdiction over probationary appeals. At the time the CSRA was passed, probationary appeals were housed within the Civil Service Commission. Nothing in the CSRA altered that arrangement or mentions probationary appeals. Further, AFGE v. OPM states “if OPM chooses to use the MSPB for dispute resolutions, it must take that statutory device as it finds it.” 821 F.2d 761, 769 (D.C. Cir. 1987) (emphasis added). This declaration assumes that OPM may, in fact, choose not to use the MSPB for dispute resolution and can create its own probationary appeal process.

That conclusion is reinforced by the structure of 5 U.S.C. 7701. MSPB hears

appeals that are properly before it under law, rule, or regulation. Before E.O. 14284, OPM regulations supplied the relevant rule for the narrow class of probationary appeals formerly heard by MSPB. Once those regulations were rescinded and replaced, there was no independent statutory command requiring those appeals to remain at MSPB. Civil Service Rule 11.6 now expressly directs OPM to prescribe the circumstances and procedures for appeals by employees terminated during probationary or trial periods. OPM is exercising that authority in this rule.

Commenter 0620 asserted that “adjudicating employee appeals is inherently a quasi-judicial activity function” and so MSPB is best positioned to adjudicate probationary appeals. The Commenter further suggested that the MSPB has a more “professionalized” process than OPM could establish, “citing MSPB's use of administrative judges, its publication of decisions, development of rules of evidence, and establishment of precedential case law through Board review.”

OPM respectfully disagrees with the Commenter's criticisms. Contrary to the claim that OPM lacks the professionalism and capability of MSPB, OPM has shown it can effectively carry out the responsibilities outlined in this rule through its experience with the classification appeals process. OPM has established a fair, impartial, and professional approach to handling classification appeals, making decisions based solely on established facts without bias or improper influence. This experience demonstrates OPM's ability to develop and maintain a neutral and effective system for adjudicating appeals.

OPM intends to apply this proven framework to the adjudication process under this rule. OPM will issue written decisions and make final merits decisions publicly available, subject to applicable legal limits, to promote transparency, consistency, and guidance for future adjudications. While the Commenter points out that OPM will use adjudicators instead of administrative judges, there is no meaningful difference between these roles in terms of their function, and this distinction does not affect the fairness or professionalism of the process.

OPM disagrees with Commenter 0443 that moving these appeals to OPM recreates the Civil Service Commission structure that Congress altered in 1978. The rule does not give OPM general authority to adjudicate all Federal employment disputes. It establishes an OPM-administered process for a narrow class of regulatory appeals involving employees whose appointments have not yet been finalized and who do not yet have tenure or a property interest in their position. MSPB remains responsible for matters within its statutory or regulatory jurisdiction. OSC, EEOC, Inspectors General, and other forums remain available where an independent legal basis for jurisdiction exists. The rule therefore does not collapse the civil service remedial structure into OPM; it establishes the limited matters that will be heard by OPM under part 751.

OPM notes finally that Executive Order 14284 eliminated Part 315, subpart H in its entirety, including the limited MSPB appeals it formerly provided. This rule creates a new process for appealing some probationary terminations to OPM. If OPM were to decline to finalize this rule then probationary employees would continue to have no appeals process whatsoever. That no-appeals status quo--not the former MSPB process--is the baseline against which this rule should be measured.

Commenters 0607 and 0615 asserted that relocating the appellate venue from MSPB to OPM will make probationary and trial period appeals less transparent and will thereby undermine public confidence in the civil service. OPM disagrees.

The final rule creates a new forum--where none currently exists-- and procedures for a narrow class of regulatory appeals; it does not make probationary or trial period personnel actions secret, exempt agencies from generally applicable disclosure laws, or diminish the merit system principles, prohibited personnel practice rules, or other accountability mechanisms that continue to govern Federal employment. Agencies remain subject to applicable statutory and regulatory requirements governing records, disclosures, privacy, prohibited personnel practices, equal employment opportunity, Inspector General oversight, Office of Special Counsel (OSC) jurisdiction, and other independent remedial processes.

OPM also disagrees that transparency depends on reinstituting MSPB as the forum for these limited appeals. As explained elsewhere in this preamble, MSPB's prior jurisdiction over probationary appeals was regulatory rather than statutory. OPM may therefore provide an OPM- administered process affording appeal rights that correspond to the limited substantive grounds historically available to covered probationary and trial period employees. The question is not whether MSPB is the only possible transparent forum, but whether the final rule provides sufficient procedural transparency and accountability for the narrow issues that are appealable under part 751.

The final rule does so. OPM has committed to issuing written decisions and making final merits decisions publicly available. In particular, OPM will maintain a publicly accessible website containing final decisions issued under part 751 that address a party's claim on the merits, subject to applicable legal limits protecting privacy, privileged information, protected personal information, law- enforcement-sensitive information, and other information that may not lawfully be publicly disclosed. This public decision requirement is intended to promote consistency, permit public review of OPM's reasoning, provide guidance to agencies and employees, and allow interested parties to assess how OPM is applying part 751 over time. The final rule also reflects OPM's intent to publish its decisions and use them to promote consistency in future adjudications.

OPM further notes that the final rule contains additional transparency safeguards. The agency must submit a response and all documents in the agency record supporting the action. The appellant may reply. The appellant, the appellant's representative, and the agency may inspect OPM's appellate record, subject to applicable limits. OPM may require additional information, conduct an audit or investigation where necessary to determine a material fact, and issue a written decision explaining the disposition of the appeal. The rule also provides reconsideration and Director review before finality. These procedures ensure that appeals are resolved on an identifiable record and through reasoned decision-making, not through unexplained or informal action.

OPM therefore declines to retain MSPB as the venue on transparency grounds. The final rule preserves public accountability through written decisions, a defined administrative record, and public availability of final merits decisions. In OPM's judgment, this framework provides transparency appropriate to the limited regulatory appeal rights at issue while also supporting the rule's objective of a faster and more focused probationary and trial period appeal process.

Many commenters, including 0006, 0203, 0395, and 0617, argued that moving probationary appeals from

MSPB to OPM would deny employees an objective and independent adjudicatory forum. These commenters asserted that OPM is a partisan authority, that OPM has a conflict of interest because it has issued governmentwide policy and guidance relating to probationary employees, and that the new process would produce predetermined outcomes. Commenters 0175 and 0198 similarly argued that the rule narrows appeal grounds and procedures before a decisionmaker subordinate to political leadership. Commenters 0036 and 0172 stated that employees will perceive OPM adjudication as unfair because agencies benefit from faster removals and because OPM adjudication will be opaque.

OPM disagrees. These comments rest on an incorrect premise about the source and nature of the former MSPB forum. Congress did not create a general statutory right for probationary employees to appeal probationary terminations to MSPB. Rather, MSPB's jurisdiction over the limited category of probationary appeals formerly covered by Sec. 315.806 was created by regulation. Congress excluded most probationary employees from the statutory adverse-action appeal rights available to employees who have completed the applicable period of service, and Civil Service Rule XI nullified the former Sec. 315.806 and directed OPM to prescribe the circumstances and procedures for appeals from probationary and trial period terminations. The final rule therefore provides a forum and procedures for a limited regulatory appeal; it does not withdraw a statutory right to MSPB adjudication. No such right exists.

OPM notes that declining to finalize this rule would not restore MSPB jurisdiction over probationary appeals. Rather, employees on probationary and trial periods would continue to have no ability to appeal terminations over issues such as political discrimination. OPM concludes that finalizing this rule and providing a transparent and defined appeals process within OPM is preferable to maintaining that status quo. Under that status quo, covered employees have no administrative forum in which to challenge even a termination alleged to be based on partisan political reasons.

OPM also disagrees that its institutional role creates a conflict of interest. OPM does not make the employing agency's individualized decision to terminate, not certify, or fail to finalize a particular employee's appointment. Those determinations are made by the employing agency. OPM's role under this rule is to adjudicate, based on the record and the limited issues made appealable under part 751, whether the appellant has established a basis for relief.

The fact that OPM administers civil service laws and regulations does not make OPM incapable of adjudicating disputes under those laws. Federal agencies routinely issue regulations, provide governmentwide guidance, and adjudicate matters within their statutory responsibilities. OPM itself is a clear example. Congress has vested the OPM Director with responsibility for executing, administering, and enforcing civil service rules and regulations and the laws governing the civil service, including retirement and classification activities. See 5 U.S.C. 1103. OPM also has express regulatory authority in several civil service areas, including competitive service examinations and veterans' preference administration. See 5 U.S.C. 1302. The fact that OPM issues governmentwide personnel policy therefore does not make it unusual for OPM also to resolve particular disputes arising under that same statutory framework.

OPM has long maintained adjudicative or quasi-adjudicative processes in personnel matters. For example, OPM adjudicates classification appeals under 5 CFR part 511, subpart F. Employees may request an OPM decision on the proper occupational series, grade, or chapter 51 coverage of their official positions, and agencies may appeal certain OPM classification certificates. In those appeals, OPM may request written facts, investigate, or audit the position; OPM's appellate decision is final unless OPM reconsiders it; and the decision is binding on administrative, certifying, payroll, disbursing, and accounting officials.

OPM also adjudicates Fair Labor Standards Act claims under 5 CFR part 551, subpart G. Those procedures cover FLSA exemption-status determinations, minimum-wage and overtime-pay claims, and child-labor complaints. Covered claimants may file with either the employing agency or OPM, but not both at the same time, and an OPM FLSA claim decision is final and not subject to further administrative review. Similarly, OPM settles certain compensation and leave claims under 5 CFR part 178; those claims are resolved on the written record, with the burden on the claimant, and OPM's settlement is final within OPM. OPM regulations also provide for appeals to OPM from certain examination ratings or application rejections.

Other agencies operate in the same manner. The EEOC issues Federal- sector EEO regulations and adjudicates appeals from agency final actions, dismissals, class-complaint decisions, and certain grievance decisions raising discrimination issues. See 29 CFR 1614.401(a)-(e). EEOC's Office of Federal Operations issues written appellate decisions on behalf of the Commission, applying specified standards of review and providing for finality unless reconsideration is granted. 29 CFR 1614.405(a)-(c). The FLRA likewise provides governmentwide leadership and guidance on Federal labor-management relations while resolving representation, negotiability, unfair-labor-practice, and arbitration matters. See 5 U.S.C. 7105. These examples show that combining policy, guidance, and adjudication within the same agency is a familiar feature of Federal administration in general, and Federal workforce administration in particular, not evidence of structural bias.

Nor does the fact that OPM is headed by a presidentially appointed Director establish bias. Like MSPB, OPM is an independent agency. 5 U.S.C. 1101. Both the OPM Director and MSPB Members are appointed by the President with the advice and consent of the Senate and serve at the President's pleasure. Indeed, MSPB members no longer enjoy for- cause removal protections and are removable at will, so MSPB possesses no greater structural independence from the President than does OPM.\34\ The principal structural difference between MSPB and OPM is that the MSPB is led by three members while OPM is headed by a single director. But a tripartite versus single-head leadership structure has little bearing on an agency's capacity to issue impartial decisions. Consequently, OPM rejects the argument that greater MSPB independence makes it a more appropriate venue for probationary appeals; the premise is inaccurate.

\34\ See Harris v. Bessent, 160 F. 4th 1235 (D.C. Cir. 2025); see also Trump v. Slaughter, No. 25-332 (June 29, 2026).

The relevant question is whether the adjudicatory structure creates a constitutionally intolerable risk of actual bias or prejudgment--not whether the agency head is politically accountable. Administrative adjudicators are presumed to act with honesty and integrity, and the combination of investigative, policymaking, and adjudicative functions in an agency does not, without more, violate due process. Withrow v. Larkin, 421 U.S. 35, 47, 58

(1975). The Supreme Court has also rejected the proposition that agency decisionmakers are disqualified merely because they previously investigated, reported on, or expressed policy views concerning related issues. FTC v. Cement Inst., 333 U.S. 683, 700-03 (1948). Due process concerns arise from more concrete circumstances, such as a direct pecuniary interest, personal involvement, personal animus, or an objectively intolerable probability of actual bias. See Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927); Withrow, 421 U.S. at 47; Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884-87 (2009).

The Administrative Procedure Act (APA) itself reflects the same principle. It permits agency review of initial decisions by presiding employees and provides that, on review, the agency has the powers it would have had in making the initial decision, subject to any limits imposed by rule or notice. 5 U.S.C. 557(b). The APA's separation-of- functions provision also expressly does not apply to “the agency or a member or members of the body comprising the agency.” 5 U.S.C. 554(d)(2)(C). Federal administrative law therefore does not treat agency-head accountability as equivalent to bias; it looks instead to whether the process includes appropriate safeguards against prejudgment, improper influence, or conflicts of interest.

Ultimately, OPM must determine whether the rule provides a fair and reasoned adjudicatory process for the limited appeal rights at issue. OPM concludes that it does. Here, the final rule provides a defined administrative process, requires decisions to be based on the record, preserves the limited substantive appeal grounds historically available to covered probationary employees, and includes safeguards against arbitrary or predetermined decision-making.

Those safeguards are substantial. Appeals are not assigned to the agency officials who took the challenged action. Rather, OPM personnel assigned to adjudicate appeals must be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action; OPM adjudicators may not consider material ex parte communications on the merits; and OPM-employee appeals must be assigned to an administrative law judge, whose initial decision may be disturbed only on limited grounds.

Further, the agency must submit a response and all documents in the agency record supporting the action. The appellant may reply. OPM may require additional information, audit or investigate an agency's action when doing so is necessary to determine a material fact, and conduct a hearing where the written record is insufficient or where credibility issues make a hearing necessary and efficient. OPM will issue written decisions, allow reconsideration, and permit Director review before finality. Those are the safeguards relevant to adjudicatory fairness; the mere fact that OPM is headed by a presidentially appointed Director is not a basis for finding institutional bias.

OPM further disagrees that the new process will be opaque. OPM has committed to make its decisions public. The final rule provides that OPM will maintain a publicly accessible website containing final decisions issued under part 751 that address a party's claim on the merits, subject to applicable legal limits protecting privacy, privileged information, protected personal information, law- enforcement-sensitive information, and other information that may not lawfully be publicly disclosed. Public availability of final merits decisions will promote consistency, allow employees and agencies to understand OPM's reasoning, and permit the public to assess how OPM is applying the rule over time. The rule therefore does not create a closed process with hidden outcomes. It creates a written, record-based process with public final merits decisions.

Commenters 0430, 0450, 0454, and others asserted that OPM will not have enough employees to review probationary appeals, that the appeals experience will become more difficult for employees, and that OPM employees will be overburdened by additional duties. OPM disagrees. The rule establishes a streamlined process tailored to a narrow class of regulatory appeals. These appeals are limited to specified issues: partisan-political reasons, marital status, and certain procedural claims involving terminations based in whole or in part on pre- appointment reasons. The final rule does not require OPM to replicate the full MSPB adjudicatory structure for chapter 75 adverse actions. By using electronic filing, written submissions, required agency records, targeted record development, and hearings only where necessary and efficient, the rule reduces unnecessary process while preserving fair adjudication of the issues that remain appealable. OPM has assessed the expected case volume and resource needs and has determined that MSAC and OPM's adjudicatory staff can administer the process. OPM will monitor implementation and may adjust internal staffing, case- management practices, and guidance as necessary.

Commenters 0006, 0010, 0013, 0030, 0617, and others asserted that making OPM the forum for these appeals forces appellants to litigate before the same entity that directed agencies to terminate them or fail to certify their appointments. OPM disagrees with that characterization. OPM does not direct agencies to terminate or refuse to certify particular employees. Agencies are responsible for evaluating their own probationary and trial period employees and for making the individualized personnel decisions challenged in any appeal. OPM's role in issuing governmentwide rules or guidance does not make it the deciding official in each agency's personnel action. Under the final rule, OPM will review the agency's action through the part 751 process, not defend or ratify a predetermined outcome.

Commenters 0038, 0307, and 0417 argued that the rule weakens the ability to challenge OPM decision-making. Commenter 0485 further argued that OPM adjudication creates a risk of bias because certain OPM actions or guidance have been alleged or found likely unlawful in other contexts. Commenters 0421, 0444, and 0578 argued that OPM cannot independently review terminations they contend OPM directed, and that the Director's ability to review decisions gives final authority to a political appointee without recourse to Article III courts.

OPM disagrees. Allegations regarding separate guidance, separate litigation, or separate personnel actions do not establish that OPM adjudicators will fail to decide part 751 appeals fairly. If an appellant contends that an employing agency acted unlawfully in a specific case, the appellant may raise any issue that is appealable under Sec. 751.101(c) and may pursue any independent remedy available before EEOC, OSC, MSPB, an Inspector General, or another authorized forum. Further, OPM notes that if it does not finalize this rule probationary employees will remain without any appeals.

Finally, commenters 0001, 0029, 0043, 0479, 0585, and others asserted that the rule is intended to “cover up” or obscure probationary terminations that occurred in 2025. Commenters 0019 and 0421 suggested that the rule would nullify pending and future probationary employee cases and allow agencies to avoid accountability for prior conduct. OPM disagrees. The final rule is prospective. Terminations effected before the effective date of the rule are not governed by this final rule, and the rule does not reopen, extinguish, or

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.

Commenters 0086, 0322, 0398, and 0500 raised due process concerns, arguing that procedures limited to the written record would be unfair and one-sided toward the agency without the due process rights to a hearing and discovery, as well as giving OPM unilateral authority to decide cases on the written record it controls and to reopen decisions. Commenters 0423 and 0430 argued that removing the agency requirement to disclose the reason for termination and placing the burden of proof on the employee blocks any successful appeal. Commenters 0444 and 0500 claimed that eliminating discovery also makes claims functionally unprovable and that the lack of hearings and discovery provide information asymmetries that give government agencies an advantage. Commenter 0502 added that this limits the ability to develop a sufficient factual record of circumstances to render an informed decision. Commenters 0485 and 0516 contended that the proposed rule failed to satisfy due process requirements by narrowing appealable claims, limiting procedural safeguards and eliminating independent adjudication, adding that these deficiencies mean the rule fails to meet the Mathews balancing test.\35\

\35\ Mathews v. Eldridge, 424 U.S. 319 (1976).

Commenter 0448 stated that it would be impossible to prove partisan or marital discrimination as the rule removes essential tools like the deposition of supervisors and the ability to examine internal communications. Commenter 0335 suggested that shortening the length of appeals benefits no one except the executive branch. And commenters 0339, 0380, 0414, and 0447 criticized the rule for replacing hearings and discovery with an OPM audit in which appellants cannot compel evidence, subpoena witnesses, or cross-examine.

OPM has carefully considered these concerns but declines to provide an automatic right to discovery or a hearing in every part 751 appeal. The appeal rights preserved in part 751 are narrow. Covered employees may raise allegations that the action was based on partisan political reasons or marital status and may raise specified procedural issues where a termination is based in whole or in part on conditions arising before appointment. These issues do not require the full range of procedures associated with statutory adverse-action appeals under chapter 75. A default written-record process is proportionate to the limited regulatory rights at issue and is consistent with the government's interest in preserving the probationary and trial period as an effective final stage of examining and assessing an employee before finalizing an appointment.

OPM also disagrees that the final rule leaves appellants dependent on an agency-created record. The final rule requires the agency to submit a response and the agency record. The appellant may reply. OPM may audit or investigate the agency's action when doing so is necessary to determine a material fact. OPM may require additional information from the agency or the appellant. OPM may also conduct a hearing where the written record is insufficient to resolve a material factual dispute or where material credibility issues make a hearing necessary and efficient. These tools allow OPM to develop the record where necessary without requiring full discovery and a hearing in every case.

OPM concludes that the procedures adopted in the final rule are adequate and proportionate for the limited issues that may be appealed under part 751. The final rule provides the substantive appeal grounds historically available for covered probationary employees--grounds that do not exist at all under the current baseline--through a process tailored to those narrow claims.

Commenter 0317 asserted that the Fifth Amendment requires that Federal employees have a fair opportunity to appeal decisions. Commenter 0150 claimed that OPM has engaged in illegal conduct since 2025, violating the constitutional right to due process. Commenters 0307, 0310, 0314 and 0516 argued that courts recognize employment rights and these cannot be extinguished arbitrarily; Loudermill held that employees possess a property interest in continued employment that entitles them to protections, including notice of reason for removal and an opportunity to respond.\36\ Commenter 0421 added that probationary employees denied discovery, hearings or independent review will argue to courts that they have been deprived of property and liberty interests without due process of law.

\36\ Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

OPM agrees that agencies must comply with applicable law and regulations when taking action against probationary and trial period employees. The final rule does not authorize terminations for unlawful reasons, and it preserves appeals alleging partisan-political discrimination, marital-status discrimination, and specified procedural defects in cases based on pre-appointment reasons.

But probationary and trial period employees do not have the same statutory property interest and concomitant due process protections as employees who have completed the applicable period of service. Smith v. Lehman, 689 F.2d 342, 345 (2d Cir. 1982), clarified that probationary employees lack a property interest in continued employment and receive only minimal procedural protection. The probationary and trial period remains an extension of the examining process. Congress and the President have preserved agency flexibility during that period because the government has a strong interest in determining, before an appointment is finalized, whether continued employment serves the public interest and the efficiency of the service.

The procedures in part 751 are therefore calibrated to the employee's limited status and the narrow issues that may be appealed. The final rule does not convert probationary or trial period terminations into chapter 75 adverse actions, and it does not create a general appeal right for claims that fall outside Sec. 751.101(c). To the extent an employee has an independent statutory claim before another forum, the final rule does not displace that remedy. Further, OPM notes that the rule creates an appeals process where none currently exists. The rule thus gives probationary and trial period employees substantially more procedural protections than they currently possess.

Commenters 0450 and 0515 argued that restricting hearings to circumstances in which OPM determines that a hearing is “necessary and efficient” will allow OPM to deny hearings in most cases. Commenters such as 0049, 0051, and 0062 similarly asserted that the absence of a guaranteed hearing or formal discovery right will tilt the appeals process in favor of agencies. These commenters contended that agencies will possess most relevant information, that appellants may be unable to uncover evidence of pretext or procedural irregularity, and that credibility disputes cannot be fairly resolved on the written record.

OPM has considered these comments but declines to create an automatic right to discovery or a hearing in every appeal under part 751. The appeal rights preserved in this final rule are narrow regulatory rights. Covered appellants may raise only the issues identified in Sec. 751.101(c): whether the action was based on partisan political reasons or marital status, and whether the agency failed to follow the specified procedures applicable to a termination based in whole or in part on conditions arising before appointment. These are not ordinary chapter 75 adverse-action appeals, and Congress did not give probationary employees the same procedural rights that apply to employees who have completed the applicable period of service. OPM therefore concludes that a default written-record process is appropriate and proportionate to the limited issues that may be appealed.

OPM disagrees, however, that the final rule leaves appellants dependent on whatever record an agency chooses to create. The final rule requires the agency to file a response and provide the agency record. The agency record must include the materials considered or relied upon in taking the action, documentation relevant to the appellant's appointment and probationary or trial period status, and other documents necessary to adjudicate jurisdiction, timeliness, appealability, and the merits of any appealable claim. The appellant may then file a reply to the agency's response and may address factual or legal issues raised by the agency. These procedures are intended to reduce information asymmetry and ensure that OPM decides appeals on an identifiable record rather than on unsupported agency assertions.

The final rule also gives OPM tools to develop the record when the written submissions are insufficient. OPM may require additional information, audit or investigate an agency's action when doing so is necessary to determine a material issue of fact, and conduct a hearing where the written record is insufficient to resolve a material factual dispute or where a material credibility issue makes a hearing necessary and efficient. OPM's standard does not mean that hearings will be denied whenever a hearing would be inconvenient. It means that hearings will be used when they are needed to resolve issues that matter to the disposition of the appeal, rather than as a routine procedural step in every case regardless of need. This approach preserves fairness while avoiding unnecessary delay and expense in cases that can be resolved on the written record.

Commenters 0008, 0167, 0357, 0430, and 0408 asserted that placing the burden on appellants to establish timeliness, OPM jurisdiction, and the appealable basis for the claim is unfair, even if lawful. OPM disagrees. The appellant is the party invoking OPM's limited regulatory jurisdiction under part 751. It is therefore appropriate for the appellant to establish, by a preponderance of the evidence, that the appeal was timely filed, that OPM has jurisdiction, and that the appellant has raised an issue made appealable by Sec. 751.101(c). This allocation is consistent with the limited nature of probationary appeal rights and with the general principle that a party seeking relief must establish the basis for that relief.

At the same time, the final rule does not require appellants to prove their claims without access to the agency's explanation and records. The agency must respond and produce the agency record; the appellant may reply; and OPM may obtain additional information where necessary. In addition, if the agency record is incomplete, inconsistent, or insufficiently developed on a material issue, OPM may take that into account in deciding whether further record development, an audit, an investigation, or a hearing is warranted. The burden-of- proof provision therefore does not make the agency's action unreviewable. It identifies which party must establish threshold jurisdictional and appealability matters and, where the merits are reached, the factual predicate for the limited claims allowed under the rule.

Commenters 0002, 0029, 0077, 0160, 0253, and others asserted that agencies should be required to provide an appellant with a rationale for dismissal. OPM declines to adopt a general rationale-for-dismissal requirement beyond the requirements preserved in the final rule. The historical probationary appeal framework distinguished between terminations based on post-appointment performance or conduct and terminations based in whole or in part on conditions arising before appointment. The final rule preserves that distinction. Where an agency terminates an employee based in whole or in part on conditions arising before appointment, the employee may appeal whether the agency failed to provide the specified procedural protections, including advance written notice stating the reasons for the proposed action, a reasonable time to answer, and a written decision. OPM has preserved that limited procedural appeal because pre-appointment reasons raise distinct fairness concerns.

OPM does not, however, make every probationary or trial period termination independently appealable based on the adequacy of the agency's explanation. The probationary and trial period is part of the examining and assessment process, and an appointment is not finalized merely by the passage of time. Agencies must comply with Civil Service Rule XI (5 CFR part 11) and applicable law, but the final rule does not convert probationary or trial period separations into chapter 75 adverse actions requiring the full statement-of-charges process applicable to covered employees. Nor does the final rule make failure to provide written notice of the effective date under 5 CFR 11.5, standing alone, a basis for reversal. Such notice serves an important administrative function, but it does not itself establish that an action was based on partisan political reasons or marital status, nor does it establish a violation of the specific pre-appointment procedures preserved in Sec. 751.101(c).

Commenters 0429 and 0572 claimed that OPM improperly assumes that non-attorney staff will be able to adjudicate appeals and that due process concerns arise unless appeals are handled by attorneys trained for that task. OPM disagrees. The final rule does not require OPM to use only attorneys, administrative judges, or administrative law judges in every case. The relevant question is whether OPM assigns personnel who are qualified to apply the governing regulation, evaluate the record, make findings on the limited issues presented, and issue reasoned decisions. OPM has experience administering record-based adjudicatory functions and will assign personnel with appropriate training and expertise to adjudicate appeals under part 751. Further, as noted above, constitutional due process requirements do not attach to probationary employees who lack a cognizable property interest in their job.

OPM also notes that these appeals involve a defined set of legal and factual

issues. The adjudicator must determine timeliness, jurisdiction, appealability, and, where appropriate, whether the appellant has established one of the limited claims permitted by Sec. 751.101(c). OPM will provide internal procedures, training, supervisory review, reconsideration, and Director review before finality to promote consistency and correct material errors. The final rule also provides an additional safeguard for appeals filed by OPM employees by assigning those appeals to an administrative law judge. OPM therefore declines to adopt a categorical rule requiring attorney adjudicators or administrative law judges in every part 751 appeal.

Some commenters assert that OPM or employing agencies may modify, omit, or shape records to support predetermined outcomes. OPM takes record integrity seriously but does not agree that speculative concerns about possible misconduct justify retaining the prior MSPB forum or imposing full discovery and hearing procedures in every case. Agencies remain subject to generally applicable legal obligations governing official records, personnel records, prohibited personnel practices, false statements, and misconduct. The final rule also requires agencies to produce the agency record, permits appellants to reply, allows OPM to require additional information, and authorizes OPM to audit or investigate where necessary to determine an issue of material fact. If an appellant identifies a material inconsistency, omission, or other reason to question the completeness or reliability of the agency record, OPM may consider that issue in determining whether further development is needed and in deciding the appeal.

Commenters 0212, 0356, 0396, and 0406 asserted that the Director's authority to oversee and, if necessary, reverse a decision subjects the process to undue political influence. In response to comments expressing concern that Director review could be too open-ended or could undermine the perceived neutrality of OPM adjudication, OPM has revised Sec. 751.108 to identify nonexclusive considerations that may inform the Director's decision to reopen and reconsider a nonfinal probationary or trial period appeal decision. Under the final rule, the Director may act on the Director's own initiative and only before a decision becomes final under Sec. 751.109. In determining whether to exercise that authority, the Director may consider, among other things, whether the decision may contain clear legal error, may rest on an erroneous finding of material fact, may involve an issue of exceptional importance, may affect the governmentwide administration of civil service laws, rules, regulations, or OPM policy, may conflict with another OPM decision, or may otherwise warrant Director review.

This revision responds to commenters who objected to Director review as insufficiently cabined, while preserving final agency supervision over important legal, factual, policy, consistency, and governmentwide civil service issues. OPM has retained sua sponte Director review because final agency oversight promotes decisional consistency and accountability within OPM's adjudicatory process. The revision does not create a separate right for parties to request Director review; parties may seek reconsideration under Sec. 751.107. If the Director reopens and reconsiders a decision under Sec. 751.108, the Director may take any action available under Sec. 751.107(c). This structure preserves meaningful principal-officer oversight while clarifying that Director review will occur within the rule's record- based adjudicatory framework, including the final rule's agency-record, separation-of-functions, ex parte, reconsideration, and finality provisions.

OPM declines to eliminate Director review entirely. Director review serves both administrative and constitutional functions. As an administrative matter, it ensures that OPM can correct material legal, factual, or procedural errors before a decision becomes final; resolve recurring or important questions of interpretation; and promote uniform application of part 751 across agencies. That review function is especially important in a governmentwide personnel system, where inconsistent interpretations by subordinate adjudicators could produce uneven appeal rights for similarly situated probationary or trial period employees in different agencies. Cf. 5 U.S.C. 1103(a)(1), (3), (5) (vesting the OPM Director with responsibility for securing “accuracy, uniformity, and justice” in OPM's functions, directing and supervising OPM employees, and executing, administering, and enforcing civil service laws and regulations).

Director review also reinforces the rule's consistency with the Appointments Clause. The Constitution requires principal officers to be appointed by the President with the advice and consent of the Senate, while Congress may vest appointment of inferior officers in the President alone, courts of law, or heads of departments. U.S. Const. art. II, sec. 2, cl. 2. The OPM Director is a presidentially appointed, Senate-confirmed officer. 5 U.S.C. 1102(a). Under the Supreme Court's Appointments Clause precedents, inferior officers must remain subject to direction and supervision by a properly appointed superior officer. Edmond v. United States, 520 U.S. 651, 663-65 (1997). In the adjudicatory context, the Court has treated the availability of review by a superior executive officer as a significant feature distinguishing inferior officers from principal officers. Id. at 665.

That principle is particularly relevant where subordinate adjudicators exercise significant authority under Federal law. The Supreme Court has held that officials who occupy continuing offices and exercise significant discretion in conducting adjudications may be “Officers of the United States” rather than mere employees. See Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991); Lucia v. SEC, 585 U.S. 237, 245-51 (2018). Consistent with those decisions, the Director of OPM--exercising the appointment authority vested in the Director by 5 U.S.C. 1103(a)(2)--will appoint, or ratify the appointment of, the officials who adjudicate appeals under this rule, and the rule further provides for supervision and review by the Director, a principal officer, before OPM's decision becomes final.

The Supreme Court's decision in United States v. Arthrex, 594 U.S. 1, 22-23 (2021), confirms the importance of that structure. There, the Court held that administrative patent judges could not constitutionally issue unreviewable final decisions on behalf of the Executive Branch while being appointed only as inferior officers. The constitutional problem was not that subordinate adjudicators participated in deciding cases; it was that their decisions were insulated from review by a principal officer. Id. at 25-26. The Court's remedy was to permit discretionary review by the Director of the Patent and Trademark Office, explaining that the Director need not review every decision, but must have authority to review decisions if he chooses. Id. at 27- 28.

Part 751 follows that model. OPM adjudicators may issue initial decisions, and OPM may reopen and reconsider those decisions on party request or on its own initiative. In addition, the Director may, in his or her discretion, reopen and reconsider any appeal in which OPM has issued a decision that has not yet become final, and a decision issued by the Director is the final decision of OPM. This structure ensures that no subordinate adjudicator has unreviewable authority to bind OPM or the Executive Branch in an appeal under part 751.

Several commenters (for example, 0553, 0543, 0548, and 0467) urged OPM to clarify or expand the final rule to permit employees in the excepted service serving a trial period under Civil Service Rule XI to appeal trial period terminations to OPM on the same grounds as competitive service probationers. OPM declines to adopt that approach. The final rule establishes a new appeals process whose substantive scope corresponds to the probationary and trial period appeal rights that existed before E.O. 14284, with a different forum and different procedures. Before E.O. 14284, subpart H of part 315 applied to probation on initial appointment to a competitive position. It did not create a general appeal right for employees serving trial periods in the excepted service. Excepted-service employees serving trial periods had appeal rights only where Congress or another regulation independently provided them. For example, part 307 provides particular appeal rights for individuals serving under Veterans Recruitment Appointments. The final rule preserves that limited category by including employees appointed under part 307 to the extent they previously had comparable appeal rights, but it does not create a new, across-the-board appeal right for all excepted-service trial period employees.

This limitation is consistent with the structure of the CSRA. Congress distinguished between competitive service employees, excepted service preference eligibles, and excepted service non-preference eligibles for purposes of adverse-action appeal rights. In particular, Congress generally did not provide excepted service employees full adverse-action appeal rights until they completed the applicable period of current continuous service. OPM does not read E.O. 14284 or Civil Service Rule XI as requiring OPM to expand those statutory or regulatory appeal rights to excepted service employees who had no such right before the Executive Order.

Civil Service Rule XI uses “probationary period” for the competitive service and “trial period” for the excepted service, and it establishes a common certification framework for both categories. That terminology and certification framework do not themselves create identical appeal rights for all employees serving probationary or trial periods. Civil Service Rule 11.6 authorizes the Director of OPM to prescribe the circumstances and procedures for appeals; it does not require OPM to create new appeal rights for categories of employees who did not previously possess them.

Expanding part 751 to cover all excepted service trial period employees would be a substantive enlargement of appeal rights rather than a conforming implementation of E.O. 14284. Such an expansion would be inconsistent with the purpose of the probationary and trial period system: to preserve agency flexibility during the initial period of assessment before an appointment is finalized. It would also risk creating uncertainty by granting appeal rights to employees whose appointments, statutory coverage, and excepted service authorities vary substantially across agencies and programs.

Accordingly, the final rule limits part 751 coverage to the categories identified in Sec. 751.101(f). Excepted service employees serving trial periods outside those categories may not appeal under this part unless they are otherwise entitled to appeal by statute or another applicable regulation. Nothing in the final rule prevents such employees from pursuing any claim or remedy that falls within the jurisdiction of the EEOC, the OSC, an Inspector General, the Merit Systems Protection Board, the Department of Labor, or another forum where an independent legal basis for such jurisdiction exists.

Commenter 0004 and others contended that the rule does not sufficiently explain how part 751 interacts with MSPB procedures in cases involving overlapping claims, mixed cases, constructive adverse actions, or employees transitioning out of probationary status. OPM has considered these comments and provides the following clarification.

Part 751 establishes a limited OPM appeal process for the categories of employees and claims identified in Sec. 751.101. It does not displace independent statutory or regulatory jurisdiction assigned to another forum. If an employee is covered by part 751 and alleges that a probationary termination, noncertification, failure to certify and finalize an appointment, or covered supervisory or managerial probationary action was based on partisan political reasons or marital status, that claim is brought to OPM under this part. If the employee alleges discrimination under statutes administered by the EEOC, the employee may pursue that claim through the Federal-sector EEO process. If the employee alleges a prohibited personnel practice within OSC's jurisdiction, the employee may file with OSC. If the employee claims that the employee was not actually a probationary or trial period employee because the employee had completed the service necessary to qualify as an “employee” under chapter 75, or if the employee asserts an independent statutory appeal right such as a claim under USERRA or VEOA, the final rule does not preclude the employee from seeking review in the forum Congress provided.

This allocation of claims reflects the structure of the current civil service remedial scheme. Congress and the President have not created a single universal forum for every type of personnel claim. Instead, different forums address different legal questions: OPM will adjudicate the narrow probationary and trial period appeal issues preserved in Sec. 751.101(c); EEOC will adjudicate claims under the Federal-sector antidiscrimination statutes it administers; OSC will address matters within its prohibited-personnel-practice jurisdiction; and MSPB will continue to adjudicate matters within its independent statutory or regulatory jurisdiction. Section 751.101(e) therefore makes the part 751 process exclusive only for appeals covered by this part, while preserving other claims where another forum has an independent legal basis for jurisdiction.

OPM also clarifies how part 751 applies when an employee is transitioning out of probationary status. The relevant question is the employee's legal status and the nature of the action at issue. If the employee has completed one year of current continuous service under other than a temporary appointment limited to one year or less and is not otherwise excluded from coverage, the employee may be covered by the procedures in part 432 or part 752, rather than part 751. If the employee remains within the categories defined in Sec. 751.101(f), the limited part 751 process applies. If the employee disputes probationary status itself, that threshold issue may be raised because OPM must determine its own jurisdiction and the applicability of part 751 before resolving the merits of any appeal.

OPM further clarifies that the label an appellant gives a claim does not determine the forum. A claim styled as a “constructive adverse action” will not be heard under part 751 unless the appellant establishes that the matter falls within OPM's jurisdiction and raises an issue made appealable by Sec. 751.101(c). Conversely, if the

employee alleges facts showing that the action is actually appealable to MSPB under an independent statutory or regulatory basis--such as because the employee had already acquired chapter 75 coverage--nothing in part 751 prevents the employee from presenting that jurisdictional argument to MSPB. Part 751 does not expand MSPB jurisdiction, but it also does not eliminate MSPB jurisdiction that exists independently of this rule.

Multiple commenters, including 0049, 0119, 0250, 0352, and many others, stated that probationary employees should have a choice to bring mixed cases to MSPB or EEOC. Commenters 0252, 0607, and 0613 expressed concern that probationary employees are especially vulnerable to discrimination and that limiting OPM appeals could hide patterns of abuse. OPM does not agree that the final rule eliminates discrimination remedies or conceals discriminatory conduct.

The final rule does not bar probationary or trial period employees from filing discrimination complaints. It directs discrimination claims to the forum Congress and regulation have made responsible for Federal- sector discrimination claims: the EEOC process. Employees who believe they were discriminated against based on race, color, religion, sex, pregnancy, national origin, age, disability, genetic information, or other protected status under statutes administered through the Federal- sector EEO process may continue to pursue those claims through that process. The final rule does not narrow the substantive protections of Title VII, the ADEA, the Rehabilitation Act, the ADA-related Federal- sector framework, or other laws administered through the EEO process. Nor does it prevent an employee from seeking judicial review where the applicable discrimination statute and EEO framework provide such review.

OPM disagrees that probationary employees must have an MSPB “mixed case” option for these claims. Congress did not create a general statutory right for probationary employees to bring probationary termination appeals to MSPB. The prior ability to attach certain discrimination allegations to an MSPB probationary appeal depended on OPM's former regulatory choice to route a narrow class of probationary appeals to MSPB. Once E.O. 14284 rendered those regulations inoperative and Civil Service Rule XI directed OPM to prescribe the circumstances and procedures for probationary and trial period appeals, OPM was not required to recreate the prior mixed-case structure for probationary appeals. OPM has instead determined that discrimination claims should be handled by the EEO process, while OPM resolves the limited probationary issues identified in Sec. 751.101(c).

Many commenters, including Commenters 0028, 0260, 0368, and 0497, suggested that the rule bars probationary employees from filing complaints with the EEOC or otherwise strips employees of rights to make discrimination claims. Those commenters are mistaken. The rule does not eliminate any substantive right to be free from unlawful discrimination. It separates claims by legal source and forum. OPM will decide the limited issues assigned to OPM under part 751. EEOC and agency EEO offices will address claims under the Federal-sector anti- discrimination laws. That approach channels claims to the entity with specialized responsibility for the relevant body of law and avoids requiring OPM to adjudicate claims that this final rule does not assign to it.

Commenters 0289, 0293, and 0296 correctly noted that probationary employees may have several possible avenues depending on the claim: an EEO complaint if they allege discrimination under statutes administered through the Federal-sector EEO process; an OPM appeal if they allege partisan-political reasons, marital status, or specified pre- appointment procedural defects within Sec. 751.101(c); an OSC complaint if they allege a prohibited personnel practice within OSC's jurisdiction; and, in some circumstances, an MSPB appeal if they contend they meet the statutory definition of “employee” or assert another independent statutory appeal right, such as rights related to military service. Other commenters, including 0342, 0484, 0579, and 0613, characterized this structure as fragmented. OPM disagrees.

The civil service remedial scheme is claim-specific by design. A structure that directs different legal claims to different expert forums does not reflect improper fragmentation. Instead, it reflects how Congress and implementing regulations have long allocated responsibility for Federal employment disputes. A discrimination claim, a prohibited-personnel-practice claim, a USERRA or VEOA claim, a threshold chapter 75 coverage claim, and a limited probationary appeal under part 751 may arise from related facts, but they are not the same legal claim. They require different legal standards, different remedies, and different adjudicatory expertise. The final rule therefore clarifies, rather than obscures, which forum is responsible for which issue.

Commenter 0345 argued that assigning discrimination claims to the EEOC process forces bifurcation, parallel litigation tracks, separate investigations, and duplicative agency staffing. Commenters 0380, 0414, 0418, 0439, 0447, 0451, and 0516 similarly argued that the rule unlawfully bifurcates EEO claims contrary to congressional intent. Commenters 0419, 0425, and 0474 argued that separating claims based on race, sex, pregnancy, or other protected status from claims of partisan-political discrimination would create waste, burden claimants, and create a possible conflict of interest because OPM would be adjudicating and enforcing its own rules.

OPM does not agree. Congress did not establish a general MSPB mixed-case appeal right for probationary terminations. The former mixed-case route existed only because OPM had previously assigned certain probationary appeals to MSPB by regulation. OPM is now replacing that regulatory assignment with a narrower OPM process under Civil Service Rule XI. It is reasonable for OPM to assign discrimination claims to the EEO process while retaining OPM review over the limited claims that part 751 preserves.

OPM also does not agree that separate forums will necessarily produce duplication or inconsistent decisions. The legal inquiries are distinct. In a part 751 appeal, OPM will determine whether the action was based on partisan political reasons or marital status, or whether the agency failed to follow specified procedures for a termination based in whole or in part on pre-appointment reasons. In an EEO matter, the agency EEO process and EEOC framework address whether the agency violated applicable antidiscrimination law. The same factual background may be relevant to more than one claim, but the legal standards, decisionmakers, and available remedies differ. Where an employee chooses to pursue multiple avenues, the employee may submit overlapping evidence to more than one forum, but that does not make the legal inquiries duplicative.

OPM further concludes that routing discrimination claims to the EEO process promotes expertise and consistency. EEOC and agency EEO offices have specialized responsibility for Federal-sector discrimination complaints, including investigation, administrative adjudication, remedies, and coordination with judicial-review rights where applicable. Requiring OPM

to adjudicate EEO claims as part of a limited probationary appeal would complicate and delay the part 751 process, undermine the streamlined structure of the rule, and risk inconsistent development of discrimination law outside the forum charged with administering it.

Nor does the rule conceal patterns of discrimination or abuse. EEO complaints remain available. OSC complaints remain available for matters within OSC's jurisdiction. Inspector General complaints remain available where appropriate. MSPB review remains available where an independent basis for MSPB jurisdiction exists. OPM will also issue written decisions in part 751 appeals and has committed to make final merits decisions publicly available, subject to applicable limits protecting privacy, privileged information, protected personal information, law-enforcement-sensitive information, and other information that may not lawfully be disclosed. These mechanisms preserve transparency and accountability while maintaining the limited scope of part 751.

Finally, OPM disagrees that its role creates a conflict of interest. OPM is not the employing agency in appeals filed by employees of other agencies and does not make the individualized decision to terminate, not certify, or fail to finalize a particular employee's appointment. Those decisions are made by the employing agency. OPM's MSAC adjudicatory function is distinct from OPM's rulemaking and policy functions, and part 751 requires decisions to be made on the record and within the limited issues identified in the rule. For appeals filed by OPM employees, the final rule provides an additional safeguard by assigning the appeal to an administrative law judge.

Accordingly, OPM declines to revise the rule to provide an MSPB mixed-case election for probationary and trial period appeals. The final rule preserves the limited appeal rights historically available to covered probationary employees, directs discrimination claims to the EEO process, preserves independent remedies in other forums where legally available, and provides clearer claim routing for employees, agencies, and adjudicators.

Commenters 0163, 0172, 0274, 0331, and 0484 argued that by taking jurisdiction from MSPB and establishing a venue at OPM, appellants will instead file wrongful termination claims in Article III courts, unnecessarily and counterproductively fracturing the CSRA's model of administrative and judicial review of Federal personnel actions.

The Supreme Court has repeatedly explained that Article III courts lack jurisdiction to hear claims arising under the CSRA, including the types of claims covered by this rule (probationary appeals). In United States v. Fausto, the Court explained that “[a] leading purpose of the CSRA was to replace the haphazard arrangements for administrative and judicial review of personnel action, part of the outdated patchwork of statutes and rules built up over almost a century that was the civil service system.” 484 U.S. 439, 444 (1988) (internal quotations and citations omitted). This comprehensive framework reflects Congress's deliberate choice to preclude judicial review outside the narrow circumstances in which the CSRA scheme permits judicial, or administrative, review.\37\ Nothing in this rule opens the doors to judicial review by probationers on wrongful termination grounds, and under this rule, such cases will continue to be dismissed for lack of jurisdiction.\38\

\37\ See, e.g., Elgin v. Dep't of the Treasury, 567 U.S. 1 (2012); Mastriano v. FAA, 714 F.2d 1152 (Fed. Cir. 1983); Sagar v. Lew, 211 F. Supp. 3d 262 (D.D.C., 2016); Walker v. Merit Sys. Prot. Bd., 594 F. App'x 984 (Fed. Cir. 2014); Gonz[aacute]lez v. V[eacute]lez, 864 F.3d 45 (1st Cir. 2017).

\38\ See Tocci v. Napolitano, 791 F. Supp. 2d 944 (D. Or., 2011); Ahuruone v. U.S. Dep't of the Interior, 312 F. Supp. 3d 1 (D.D.C., 2018); Swartz v. Internal Revenue Serv., 702 F. Supp. 780 (W.D. Mo. 1988); Ladson v. Jue, 2015 WL 3755918 (E.D. Va., 2015); Chamat v. Paulson, 2009 WL 764989 (S.D. Cal., 2009); Peter B. v. C.I.A., 620 F. Supp. 2d 58 (D.D.C. 2009); Gonzalez v. Manjarrez, 2013 WL 152177 (W.D. Tex. Jan. 4, 2013), aff'd, 558 F. App'x 350 (5th Cir. 2014); Toro v. Napolitano, 2013 WL 4102158 (S.D. Cal. Aug. 13, 2013); Radakovic v. U.S. Office of Pers. Mgmt., 2012 WL 1900037 (D. Mass. 2012).

Commenters 0227, 0035, 0044, 0399, 0425, 0516 and others asserted that this rule violates the Merit System Principles codified at 5 U.S.C. 2301. OPM disagrees. The Merit System Principles remain fully in effect and continue to govern Federal personnel management. Nothing in this rule authorizes an agency to take, or OPM to approve, a personnel action based on partisan political reasons, marital status, political affiliation, favoritism, arbitrary conduct, retaliation, or any other basis prohibited by law. The final rule creates a forum and procedures for a limited class of regulatory appeals; it does not displace the Merit System Principles, the prohibited personnel practices in 5 U.S.C. 2302, the jurisdiction of OSC, the jurisdiction of EEOC, or any other independent statutory protection.

Indeed, the final rule is designed to preserve the merit-based character of probationary and trial period employment while recognizing the distinct role of those periods in the civil service system. A probationary or trial period is part of the examining and assessment process. During that period, agencies must be able to determine whether continued employment advances the public interest and the efficiency of the service. At the same time, agencies may not use that period as a means to evade the Merit System Principles or to take actions for unlawful reasons. Part 751 reflects that balance by preserving appeals alleging partisan political reasons or marital status and by preserving specified procedural challenges where a termination is based in whole or in part on conditions arising before appointment.

Commenters 0011, 0070, 0396, 0615 and others asserted that this rule will be abused to effectuate politically based dismissals. One commenter points to Starkey v. Dep't of Housing and Urban Development, 2024 M.S.P.B. 6 (2024), as justification for retaining MSPB jurisdiction to prevent politically based dismissals. OPM has considered this concern, but does not agree that Starkey supports reestablishing MSPB as the forum for all probationary appeals.

Starkey demonstrates the importance of preserving a meaningful avenue to challenge a probationary termination allegedly based on partisan political reasons. The final rule does exactly that. A covered appellant who alleges that a termination, noncertification, failure to certify and finalize an appointment, or covered supervisory or managerial probationary action was based on partisan political reasons may appeal that claim to OPM under Sec. 751.101(c). Thus, the final rule does not eliminate the type of claim at issue in Starkey; it preserves that claim and assigns it to OPM for adjudication under the procedures in part 751.

OPM also disagrees that such claims can be fairly resolved only by MSPB. The relevant question is whether the adjudicatory process allows the decisionmaker to evaluate the record, require production of relevant agency materials, consider the appellant's response, develop the record where necessary, assess material factual disputes, and provide reasoned decisions. The final rule provides those safeguards. The agency must submit a response and all documents in the agency record supporting the action. The appellant may reply. OPM may require additional information, audit or investigate the agency's action when

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.

Commenters 0570 and 0608 questioned OPM's authority to mandate the procedures provided for in this rule as the sole and exclusive means by which a probationary or trial period employee may appeal a termination. For example, they point to the definition of the term “grievance,” provided at 5 U.S.C. 7103(a)(9) as basis for Congress mandating probationary or trial period employees be permitted to challenge terminations via negotiated grievance arbitration procedures.

OPM disagrees. Courts, interpreting Congress's intent, have long found that probationary employees are, by statute, treated differently than those who have been certified following such periods.\39\ Among the procedures Congress did not grant to probationary employees was the ability to challenge a removal by grievance. Proposals to extend such procedures to probationary employees are contrary to law. “Permitting probationary employees to grieve removals based on a mere allegation of violation . . . would eviscerate the entire purpose of the probationary program.” NTEU v. FLRA, 737 F.3d 273, 280 (4th Cir. 2013).

\39\ See, e.g., 5 U.S.C. 7501(1); Goss v. Dep't of the Air Force, 131 F. App'x 721, 724 (Fed. Cir. 2005); Mastriano v. FAA, 714 F.2d 1152, 1155 (Fed. Cir. 1983); see also Bante v. Merit Sys. Prot. Bd., 966 F.2d 647 (Fed. Cir. 1992); Bofill v. Merit Sys. Prot. Bd., 26 F. App'x 916 (Fed. Cir. 2001).

Probationary terminations are not a matter covered under Chapter 71, and placing them within such bounds, thereby opening the door to use of negotiated grievance procedures to challenge terminations, would “upset nearly thirty years of FLRA decisions holding that probationary employees are not permitted under law or regulation to grieve removals.” Id. Thus, there is no statutory basis to provide official time to representatives in connection with probationary appeals. Use of official time is principally governed by statute. Under 5 U.S.C. 7131, which forms the basis of the statutory right, official time is authorized only when a representative is: negotiating a collective bargaining agreement; participating for or on behalf of a labor organization in a proceeding before the FLRA; or in connection with any other matter covered by the FSLMRS. Courts have repeatedly explained that probationary appeals are not covered by Chapter 71.\40\

\40\ See Nat'l Treasury Emps. Union v. Fed. Labor Rels. Auth., 737 F.3d 273, 280 (4th Cir. 2013) (noting longstanding precedent that probationary employees may not grieve removals); United States Dep't of Health & Human Servs. v. FLRA, 858 F.2d 1278, 1283 (D.C. Cir. 1988) (emphasizing Congress's intent to permit summary termination during probation); see also United States Dep't of Justice v. FLRA, 709 F.2d 724, 730 (D.C. Cir. 1983); Bartholomew v. United States, 740 F.2d 526, 530 (7th Cir. 1984); United States Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 690 (D.C. Cir. 2009).

Therefore, OPM's rulemaking properly precludes proposals to grant grievance-arbitration rights to probationary employees. Further, Commenters misunderstand how the term “grievance” is defined under 5 U.S.C. 7103(a)(9). Provisions of the FSLMRS, “like every Act of Congress, should not be read as a series of unrelated and isolated provisions.” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995). This means the definition of “grievance” in the FSLMRS is not rigid or applied to every situation. Instead, when determining what counts as a grievance, one must exclude any subject matter that is already excluded due to conflicts with other laws or by governmentwide rules under 5 U.S.C. 7117(a)(1). Further, Congress “specifically excluded probationary employees from the broad definitions of `employee' and `grievance”' in statute. NTEU v. FLRA, 848 F.2d 1273, 1276 (D.C. Cir. 1988).

Commenters 0055, 0081, and 0110 asserted that the rule would preclude an appellant from designating a union official as his or her representative.

Commenters 0004, 0047, 0153, 0217, 0347, 0599, and others asserted that an employee is statutorily entitled to select a Federal employee who is a union official to assist him or her in the preparation of an appeal, and, in such cases, the selected representative is entitled to claim official time for work done while in a duty status on behalf of the employee.

However, the final rule preserves an appellant's ability to select a representative, including a union representative, subject to the limitations in Sec. 751.104. The rule does not prevent an employee from seeking advice, consulting a representative, or being represented in an appeal under part 751. Nor does it affect official time that may be independently authorized in other proceedings, such as EEO proceedings, where a separate legal framework applies.

The rule merely prevents the representative (when such representative is a Federal employee) from performing representational functions while in a duty status (including while on official time) or from claiming agency reimbursement for any expenses incurred while performing such representational function.

OPM believes that part 751 appeals should not be conducted through paid representational activity by Federal employees in a duty status. Part 751 appeals are regulatory probationary-appeal proceedings established by OPM under Civil Service Rule XI. They are not negotiated grievance proceedings under chapter 71, and the final rule does not require agencies to provide official time for the preparation or presentation of these appeals. Section 7131(d) allows official time for representational activity in amounts the agency and exclusive representative agree to be reasonable, necessary, and in the public interest, subject to applicable law and governmentwide regulation. This final rule establishes a governmentwide procedural limitation for this OPM appeal process. Other commenters, such as Commenters 0086, 0283, 0516, 0570, and 0584, asserted that official time is essential to ensuring that probationary and trial period employees can effectively challenge improper agency actions. OPM has considered these comments but declines to revise the rule. The final rule preserves an appellant's ability to select a representative, including a union representative, subject to the limitations in Sec. 751.104. It does not require appellants to proceed without assistance, prohibit union representatives from advising or representing employees, require appellants to retain private counsel, or limit representation in proceedings outside part 751 where official time is independently authorized. What the final rule does is narrower: it provides that a Federal employee who serves as a representative in this OPM regulatory appeal process may not perform that representational work in a duty status, including on official time under 5 U.S.C. 7131.

OPM disagrees that taxpayer-funded official time is necessary to make representation meaningful in this limited appeal process. Part 751 appeals are not negotiated grievance proceedings under chapter 71, nor are they statutory adverse-action appeals under chapter 75. They are limited regulatory appeals established under Civil Service Rule XI for employees whose appointments have not yet been finalized. The issues are correspondingly narrow: partisan-political reasons, marital status, and specified procedural claims involving terminations based in whole or in part on conditions arising before appointment. Given that limited scope, OPM concludes that the public interest is better served by preserving the right to representation while not requiring agencies to subsidize preparation or presentation of these appeals through official time.

Further, official time would be statutorily unavailable to represent probationary employees in part 751 appeals even if this regulation were silent on the topic. 5 U.S.C. 7131(d) authorizes agencies to provide official time for (1) “any employee representing an exclusive representative” and (2) “in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative.”

Ground (1) is unavailable because a Federal employee who assists a probationer in a part 751 appeal is not “representing an exclusive representative” within the meaning of the statute. That phrase describes an employee acting on behalf of the labor organization in its institutional capacity--that is, performing the representational functions the FSLMRS assigns to an exclusive representative, such as negotiating a collective bargaining agreement, processing grievances under a negotiated grievance procedure, or participating in proceedings under chapter 71. See 5 U.S.C. 7114(a)(1); AFGE, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, 3 FLRA No. 47 (1980) (official time under 5 U.S.C. 7131 concerns activities involving an “interface” between the labor organization and agency management under the Statute, such as negotiations, grievances, negotiability disputes, and unfair labor practice proceedings, and preparation for such activities); cf. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89 (1983) (declining to extend the benefits associated with official time beyond those Congress provided in the Statute).

A part 751 appeal involves none of these functions. The representative's authority in such an appeal derives solely from the individual appellant's personal designation under Sec. 751.104, not from the union's status as exclusive representative. Indeed, the FSLMRS itself distinguishes between representation by an exclusive representative and an employee's separate right to be represented “by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action.” 5 U.S.C. 7114(a)(5)(A). A Federal employee designated by a probationer under Sec. 751.104 acts in the latter, personal capacity. The exclusive representative is not a party to a part 751 appeal, has no statutory or regulatory role in the proceeding, and asserts no institutional interest of its own; part 751 appeals are not grievances, and the union's chapter 71 representational authorities are therefore not implicated. This conclusion does not change merely because the individual the appellant selects happens to hold union office: an employee's union title does not convert personal representation of an individual appellant into representation of the exclusive representative.

Thus, because employees representing colleagues in probationary appeals are representing the probationer, not the union, such hearings are not grievances where the union's institutional authorities are implicated. As a result, ground (1) for official time is unavailable. As discussed above, courts have consistently held that Chapter 71 of Title 5, United States Code does not cover appeals of probationary terminations. See NTEU v. FLRA, 737 F.3d at 279-80; NTEU v. FLRA, 848 F.2d at 1276 (D.C. Cir. 1988); Dep't of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983); NTEU, 67 FLRA 24, 26 (2012), aff'd sub nom. NTEU v. FLRA, 737 F.3d 273 (4th Cir. 2013). Consequently, probationary appeals are not “any other matter covered by” Chapter 71 and ground (2) is also unavailable. Commenters do not explain how it would be lawful for agencies to provide paid official time to represent probationary employees without statutory authorization under 5

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.