Streamlining Probationary and Trial Period Appeals

OPM is specifying in Sec. 751.101(e) that “[a] party cannot obtain judicial review of a decision under this part.” It is also providing in Sec. 751.109(d) that “[t]here is no further right of appeal of a final decision of OPM.” Commenters 0341, 0431, 0440, 0450, and others contended that, although lawful, restricting judicial review is unfair.

OPM disagrees. Section 751.101(e) does not withdraw a statutory right to judicial review. Rather, it reflects the absence of any statutory right to obtain judicial review of an OPM decision adjudicating a probationary or trial period appeal under this part. Congress has provided judicial review in the CSRA where it chose to do so. For example, 5 U.S.C. 7703 authorizes judicial review of final orders or decisions of the MSPB. But the decisions issued under this rule are OPM decisions, not MSPB decisions. Nothing in 5 U.S.C. 7703, chapter 75, or chapter 77 grants a party a right to obtain judicial review of an OPM decision issued under a regulatory probationary-appeal process. Nor does the prior existence of MSPB review

under former Sec. 315.806 create an independent statutory entitlement to judicial review. Any judicial review previously available flowed from OPM's regulatory decision to route certain probationary appeals to the MSPB, whose final decisions are governed by 5 U.S.C. 7703. OPM has now exercised its authority, consistent with Civil Service Rule 11.6, to prescribe a different forum and different procedures for this limited class of appeals.

This conclusion follows from the structure of the CSRA. The CSRA “creates an integrated scheme of administrative and judicial review, wherein the Congress intentionally provided--and intentionally chose not to provide--particular forums and procedures for particular kinds of claims.” Am. Fed'n of Gov't Emps. v. Sec'y of the Air Force, 716 F.3d 633, 636 (D.C. Cir. 2013) (alterations, citation, and quotation marks omitted). Congress allowed certain individual Federal employees who are affected by agency personnel decisions to challenge those decisions “by litigating their claims through the statutory scheme in the context of [a] concrete” dispute, with limitations imposed by Congress on the kinds of claims and remedies available. See Am. Fed'n of Gov't Emps. v. Trump, 929 F.3d 748, 757 (D.C. Cir. 2019).

That structure is not accidental. The CSRA's review scheme is both “comprehensive and exclusive.” Grosdidier v. Broad. Bd. of Govs., 560 F.3d 495, 497 (D.C. Cir. 2009). It is “comprehensive” in that “[i]t regulates virtually every aspect of Federal employment and prescribes in great detail the protections and remedies applicable to adverse personnel actions, including the availability of administrative and judicial review.” Nyunt v. Broad. Bd. of Gov., 589 F.3d 445, 448 (D.C. Cir. 2009) (cleaned up). It is “exclusive,” meanwhile, in that “[i]t constitutes the remedial regime for Federal employment and personnel complaints.” Id. The CSRA's review scheme is exclusive even when “the CSRA provides no relief,” and in fact, “precludes other avenues of relief.” Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004). In other words, “the CSRA is the exclusive avenue for suit even if the plaintiff cannot prevail in a claim under the CSRA.” Grosdidier, 560 F.3d at 497. “Congress designed the CSRA's remedial scheme with care, `intentionally providing--and intentionally not providing--particular forums and procedures for particular kinds of claims.”' Id. (quoting Filebark v. Dep't of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009)).

In United States v. Fausto, the Court held that the absence of CSRA review rights for a covered category of excepted service employees was not a gap to be filled by another remedial statute, but a manifestation of Congress's considered judgment about the scope of review. 484 U.S. 439 (1988). Similarly, in Elgin v. Dep't of the Treasury, the Court held that the CSRA supplied the exclusive review scheme for covered employees challenging covered adverse actions, even where the employees raised constitutional claims. 567 U.S. 1 (2012). These decisions confirm that the question is not whether judicial review might be desirable as a policy matter, but whether Congress has provided it for the action, employee, claim, and forum at issue.

In contrast to covered employees, probationers generally do not enjoy the same guaranteed right to appeal termination decisions to the MSPB, as Congress excluded them from the definition of “employee[s]” for purposes of the CSRA's Chapter 75. See 5 U.S.C. 7511(a)(1). The probationary period has long been treated as an extension of the examining process, and Congress generally withheld ordinary chapter 75 adverse-action appeal rights from employees who have not completed the applicable service or status requirements.

Courts have repeatedly recognized that probationary employees' appeal rights are “extremely limited” and that there is no statutory basis for ordinary MSPB jurisdiction over probationary removals. Mastriano, 714 F.2d at 1155. The former MSPB appeal right for probationary employees was regulatory, not statutory. OPM's decision to provide a limited OPM administrative appeal therefore does not trigger the judicial-review provisions applicable to MSPB decisions, nor does it require OPM to create a new layer of judicial review by regulation.

Commenters 0341, 0371, and 0450 suggested that OPM's decisions cannot be final without court review, and that the ability to challenge agency decisions in court serves as a check on agency mistakes. Commenter 0483 added that denying access to Article III courts may also be unconstitutional since the Supreme Court has held that judicial review provides a forum for claims after administrative exhaustion requirements have been met by litigants. Commenters 0410 and 0483 asserted that the Supreme Court has recognized a presumption in favor of judicial review, having rejected arguments in cases like Kucana v. Holder that such a right may only be stripped by express exclusion in statute. See Kucana v. Holder, 558 U.S. 233 (2010). Other commenters, like 0255 and 0444, asserted that there is a generalized right of judicial review.

Unlike the circumstances cited in Kucana, the CSRA does not establish a right to judicial review for any aspect of the administrative process for resolving the probationary or trial period assessment. To the extent that OPM previously delegated this review authority to the MSPB, whose decisions are in turn subject to judicial review by the Federal Circuit, this grant of review by OPM is best described as an act of grace. In hindsight, rather than serving as an efficient way to resolve disputes arising during the probationary period, OPM believes that this grant unduly restricted agencies' ability to conduct probationary assessments by introducing the possibility of multiple rounds of administrative review and subsequent judicial review in a Federal appellate court.

While the CSRA does include a comprehensive remedial scheme, which may include judicial review, this review is limited. The CSRA provides that “[t]he reviewable agency actions are removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less.” Elgin, 567 U.S. at 5-6. But courts have repeatedly dismissed a litany of other actions arising under the CSRA (including, but not limited to, those relating to the APA). For example, in United States v. Fausto, 484 U.S. 439 (1988), the Court said “the absence of provision for . . . employees to obtain judicial review is not an uninformative consequence of the limited scope of the statute, but rather manifestation of a considered congressional judgment . . . This conclusion emerges not only from the statutory language, but also from what we have elsewhere found to be an indicator of nonreviewability, the structure of the statutory scheme.” Similarly, in Zummer v. Sallet, 37 F.4th 996 (5th Cir. 2022), the court held the CSRA prohibits district courts from hearing claims seeking to reverse suspensions and terminations. Indeed, for decades, courts have consistently held “that it would be inappropriate . . . to supplement [the CSRA] regulatory scheme with a new judicial remedy.” Bush v. Lucas, 462 U.S. 367, 368 (1983). See also Krafsur v. Davenport, 736 F.3d 1032, 1034 (6th Cir. 2013) (“The [CSRA] spells out in painstaking detail the path an employee must follow if he wants to challenge a prohibited personnel practice”); Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005) (Roberts, J.); Dotson v. Griesa, 398 F.3d 156, 163 (2d Cir. 2005) (“the CSRA creates an integrated scheme of

administrative and judicial review for adverse employment actions . . . That scheme . . . affords no administrative or judicial review to judicial branch employees”) (internal quotation marks omitted); Pathak v. Dep't of Veterans Aff., 274 F.3d 28 (1st Cir. 2001) (holding the CSRA stripped the district court of subject matter jurisdiction to consider a suspension of less than 14 days); Ryon v. O'Neill, 894 F.2d 199, 204 (6th Cir. 1990) (“In short, the text of the CSRA, the structure of the review it establishes, and the legislative history of the Act, all lead ineludibly to the conclusion that Congress intended review of agency reassignment decisions to be confined to the specific procedures set out in the text of the CSRA”); and Yokum v. U.S. Postal Serv., 877 F.2d 276 (4th Cir. 1989) (holding the CSRA “precludes judicial review of administrative personnel decisions adverse to the interests of nonpreference eligible postal workers”) (internal quotations omitted).

This is because the “CSRA nowhere grants any employee, whether in the excepted or competitive service, the right to bring an action in Federal district court.” Galvin v. F.D.I.C., 48 F.3d 531 (5th Cir. 1995). “It is well established that the appeal rights of a probationary employee are extremely limited.” Mastriano, 714 F.2d at 1155. In fact, “Congress excluded probationary employees from the definition of `employee' for most adverse action purposes.” Piskadlo v. Veterans' Administration, Merit Sys. Prot. Bd., 669 F.2d 82, 83 (1st Cir. 1982). Further, “[t]he language of the current statute establishes that Congress clearly intends review of the termination of probationary employees to be more limited than that of other employees.” Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 650 (Fed. Cir. 1992). Put plainly, Congress intended to provide more review rights to regular employees than probationary employees. It does not stand to reason, therefore, that when taking great pains to, “in great detail,” prescribe the avenues of redress available under the CSRA, “including the availability of administrative and judicial review,” Fausto, 484 U.S. at 443, Congress intended to provide probationary appellants greater access to Article III judicial review than it provided to non-probationary employees.

Commenters' reliance on the general presumption favoring judicial review is misplaced in this context. OPM recognizes that courts ordinarily presume that agency action is subject to judicial review. But that presumption may be overcome by the structure and purpose of a comprehensive statutory scheme. The CSRA is such a scheme. Unlike the statute at issue in Kucana, this is not a case in which OPM is attempting to make an otherwise reviewable statutory claim unreviewable merely by labeling the matter discretionary by regulation. Instead, Congress enacted a detailed personnel-review scheme that provides judicial review for some personnel actions, employees, and forums, while withholding it for others. The absence of judicial review here is therefore not an “extraordinary delegation” to OPM to insulate its own decisions from review; it is a consequence of Congress's decision not to provide judicial review for probationary appeal decisions of this type.

OPM also disagrees that additional judicial review is necessary to make the process fair. Fairness must be assessed in light of the limited status of probationary and trial period employees, the narrow issues appealable under this part, and the government's strong interest in preserving the probationary and trial period as a meaningful extension of the examining process. The final rule provides a neutral administrative forum within OPM; requires an agency response and production of the agency record; allows the appellant to reply; permits representation; authorizes OPM to audit or investigate where necessary to determine an issue of material fact; permits a hearing where the written record is insufficient or credibility issues make one necessary and efficient; provides written decisions; authorizes appropriate corrective relief, including back pay where available; allows reconsideration; permits Director review before finality; and requires publication of final merits decisions, subject to applicable limits. In OPM's judgment, those procedures are adequate and proportionate for the limited regulatory appeal rights at issue, ensuring a fair process for an appellant.

Nor does this rule foreclose independent remedies that Congress or another lawful authority has made available outside part 751. Section 751.101(e) expressly preserves the ability of an employee to file a complaint, appeal, or other matter within the jurisdiction of the EEOC, an Inspector General, the MSPB, or OSC where an independent legal basis for such jurisdiction exists. Employees may continue to pursue discrimination claims through the EEO process and may obtain judicial review where the applicable civil-rights statutes and EEOC regulations authorize it. Employees may also pursue claims before OSC, MSPB, or another forum to the extent Congress has independently authorized such claims. What the final rule does not provide is a further administrative appeal or judicial review of OPM's own final decision under this limited probationary-appeal process.

Commenters also invoked Wesson v. Jenkins \41\ and McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.\42\ to argue that OPM may not make its part 751 decisions final without judicial review. OPM disagrees. Neither decision addresses the CSRA, probationary employment, OPM's authority to prescribe probationary-appeal procedures, or the availability of judicial review of an OPM decision issued under a regulatory civil service appeal process.

\41\ 2020 WL 1066531 (N.D. Ohio Mar. 5, 2020), aff'd sub nom. Wesson v. Shoop, 17 F.4th 700 (6th Cir. 2021).

\42\ 606 U.S. 146 (2025).

The facts and applicable legal requirements of both cases also diminish their relevancy. Wesson is a Federal habeas case involving collateral review of an Ohio capital conviction under 28 U.S.C. 2254. It says nothing about the CSRA's integrated remedial scheme for Federal personnel actions or the scope of review available to probationary Federal employees.

McLaughlin is likewise inapposite. There, the Supreme Court considered whether the Hobbs Act required a district court, in a private Telephone Consumer Protection Act enforcement action, to treat an FCC statutory interpretation as binding. The Court held that the Hobbs Act did not bind district courts in later civil enforcement proceedings because the Hobbs Act was silent as to that distinct enforcement-proceeding question. The Court's analysis turned on the structure of pre-enforcement review statutes and the absence of language or statutory context precluding later review in that specific setting.

The CSRA is materially different. This rule does not involve a civil enforcement proceeding, a private damages action, or a regulated party defending against liability. It involves a Federal employment dispute governed by the CSRA and Civil Service Rule XI. Unlike the Hobbs Act provision at issue in McLaughlin, the CSRA is not silent about review of Federal personnel actions. It creates a detailed and integrated system that specifies which employees may obtain administrative review, which actions are appealable, which forum may hear the appeal, and when judicial review is available.

Accordingly, OPM concludes that adding judicial review to this regulatory

process would effectively recreate the multi-layered adjudicatory structure that E.O. 14284 directed OPM to replace, and would undermine the efficiency and accountability benefits of resolving probationary appeals through a limited administrative process tailored to the narrow issues historically available to probationary appellants. Further, OPM cannot unilaterally subject its decisions to judicial review; that takes an act of Congress. No provision in the CSRA provides jurisdiction to Federal courts to review OPM decisions in probationary appeals. OPM cannot waive the Federal Government's sovereign immunity by regulation without Congressional authorization. OPM therefore declines to revise the final rule to provide any further administrative appeal or judicial review of final OPM decisions under part 751.

Commenter 0198 argued that Federal employees serving probationary or trial periods have a reliance interest in having appeals concerning terminations heard by MSPB. The commenter also argues that this rule will undermine the American public's reliance on a nonpartisan civil service.

OPM has considered these reliance concerns but concludes that they do not warrant reestablishing MSPB as the forum for these limited regulatory appeals. The reliance interest asserted by Commenter 0198 concerns a forum and set of procedures created by regulation, not a statutory entitlement to MSPB adjudication. Congress did not provide most probationary employees with the same statutory adverse-action appeal rights available to employees who have completed the applicable period of service. The former MSPB appeal route existed because OPM regulations assigned a narrow category of probationary appeals to MSPB. Because that forum was regulatory, OPM may prospectively revise it, provided OPM acknowledges reliance concerns and gives a reasoned explanation for the change.

OPM has done so here. The final rule is prospective and does not disturb terminations effected before the effective date of the rule, pending appeals, or final decisions issued under the prior framework. It also preserves the core substantive protections historically available to covered probationary appellants: claims that the action was based on partisan political reasons or marital status, and specified procedural claims for terminations based in whole or in part on conditions arising before appointment. The rule therefore does not leave covered employees without a remedy for the historically recognized grounds of probationary appeal; it changes the adjudicatory forum and procedures for those claims.

Further, employees currently serving an initial probationary period in the competitive service do not have a cognizable reliance interest in the Merit Systems Protection Board as the forum for probationary termination appeals, because any such expectation was extinguished when the President issued Executive Order 14284 over a year ago. That order rendered inoperative and without effect the prior regulatory framework in subpart H of part 315 that had designated MSPB as the venue for probationary appeals. Once those regulations were revoked, any prior, purely regulatory expectation that MSPB would hear probationary appeals ceased to exist, and probationary employees were on notice that continued service during the probationary period did not carry with it a right to MSPB adjudication of termination decisions. OPM notes that every competitive service employee currently serving their one-year probationary period was hired after the issuance of Executive Order 14284. Accordingly, they had no expectation of limited MSPB probationary appeals as those appeals did not exist when they were hired.

In addition, even if E.O. 14284 had not rescinded the prior MSPB forum for competitive service employees serving an initial probationary period, OPM would still find any reliance interests in that forum to be limited. Probationary and trial period employees enter service with notice that their appointments have not yet been finalized and that the probationary or trial period is part of the examining and assessment process. The historical appeal rights available during that period have been narrow. OPM does not discount that some applicants and employees may value the prior MSPB forum, but OPM does not believe that employees generally accepted or continued Federal employment principally in reliance on the availability of MSPB review for the limited grounds historically available to probationary appellants. In any event, any such reliance is outweighed by the benefits of establishing a streamlined process better tailored to the limited regulatory rights at issue.

Nor does the final rule undermine public reliance on a nonpartisan civil service. The rule does not authorize politically based dismissals, favoritism, retaliation, discrimination, or arbitrary personnel action. The Merit System Principles, prohibited personnel practices, EEO protections, whistleblower protections, OSC jurisdiction, Inspector General authorities, and other independent accountability mechanisms remain in effect. The final rule also expressly preserves appeals alleging partisan political reasons or marital status. In addition, OPM will issue written decisions and has committed to making final merits decisions publicly available, subject to applicable legal limits. Public availability of those decisions will promote transparency, consistency, and public accountability in OPM's administration of part 751. Rather, OPM expects the final rule to strengthen the nonpartisan nature of the civil service. This is because it creates an appeals process to adjudicate allegations of discrimination based upon political affiliation. Currently no such process exists. If OPM were to decline to finalize the rule probationary employees would remain generally unable to appeal terminations based upon political discrimination.\43\

\43\ OPM notes that other forums available for contesting discrimination based upon political affiliation, such as the Office of Special Counsel or an Inspector General report, permit employees to file a complaint but do not provide a direct right of appeal, as this rule does.

Several commenters also argued that the rule will harm recruitment and retention by creating an actual or perceived degradation of due process. Commenters asserted that the rule could reduce the Government's ability to compete with the private sector for top talent; make it harder to fill specialized positions; increase the need to train replacement employees; discourage new ideas and viewpoints; deter employees from moving into better-fitting positions or management roles; and, in some cases, harm national security by making it harder to retain highly trained employees.

OPM has considered these concerns but does not agree that they justify retaining the prior MSPB process. The rule should be evaluated in light of what it actually does. It does not reduce the rights of employees who have completed probationary or trial periods and obtained the statutory protections associated with continued service. It does not eliminate EEO rights, whistleblower protections, prohibited- personnel-practice remedies, veterans' rights, or other independent statutory remedies. It does not eliminate all appeal rights for covered probationary employees. And it does not authorize agencies to separate employees for unlawful reasons. Rather, it expands

employees' rights by creating a focused adjudicatory process for a narrow category of appeals by employees whose appointments have not yet been finalized.

OPM further concludes that a clear and effective probationary system supports, rather than undermines, recruitment and retention. The Federal Government's ability to attract and keep high-performing employees depends not only on procedural protections but also on public trust, mission effectiveness, performance accountability, and the ability of agencies to build strong teams. A system that makes the probationary or trial period meaningful helps agencies identify employees who should receive finalized appointments, address poor fit or inadequate performance early, and avoid imposing long-term burdens on coworkers, supervisors, agency missions, and the public. High- performing employees benefit from a workplace in which performance matters and agencies can act before performance or conduct problems become entrenched.

OPM does not agree that the Government's prior investment in recruiting, onboarding, or training a probationary employee means the appointment should be finalized regardless of the agency's assessment. Those investments are important, but they are not dispositive. The purpose of the probationary and trial period is to determine, before an appointment becomes final, whether continued employment advances the public interest, the agency's mission, and the efficiency of the service. Treating sunk costs as a reason to retain an employee whose continued service does not satisfy that standard would defeat the purpose of the probationary system and would not serve agencies, employees, or the public.

OPM also does not agree that the final rule will deter talented applicants from Federal service. Applicants who seek a career in public service should expect both merit-based protections and meaningful performance accountability. The final rule advances both interests. It establishes limited appeal rights for unlawful or procedurally defective actions, provides a written-record process with agency record production and appellant reply, permits OPM to require additional information and conduct audits, investigations, or hearings where necessary and efficient, provides reconsideration and Director review before finality, and requires public availability of final merits decisions subject to applicable legal limits. At the same time, it avoids importing procedures designed for tenured adverse-action appeals into the distinct probationary and trial period context.

OPM recognizes the importance of recruiting and retaining talented employees in specialized, mission-critical, and national-security- related positions. But OPM does not believe that resuscitating the prior MSPB forum for narrow probationary appeals is necessary to accomplish that objective. Agencies can and should recruit by communicating the value of Federal service, the importance of mission, the protections that continue to apply, and the expectation that employees will demonstrate during the probationary or trial period that continued service is in the public interest. A transparent, predictable, and timely appeal process supports that message better than a more complex process that is disproportionate to the limited rights at issue.

Accordingly, OPM concludes that the asserted reliance, recruitment, and retention concerns do not outweigh the benefits of the final rule. The rule strengthens the merit-based civil service by providing limited appeals, maintains the substantive protections historically available to covered probationary appellants, leaves independent statutory remedies intact, increases transparency through public final merits decisions, and establishes a streamlined adjudicatory process that better reflects the limited status of employees whose appointments have not yet been finalized.

Commenters 0206 and 0207 asserted that this rule violates the major questions doctrine, suggesting the substance of this rule concerns an issue of vast “economic and political significance” and the “history and the breadth of the authority that [the agency] has asserted” creates a question as to whether the CSRA provides the authority asserted, citing the Supreme Court's decision in West Virginia v. EPA, 597 U.S. 697, 721 (2022).

Commenters' reliance on West Virginia v. EPA is misplaced. The major questions doctrine applies only in “extraordinary cases” where the history and breadth of the authority asserted, together with the economic and political significance of that assertion, give a court reason to hesitate before concluding that Congress delegated the authority claimed. Id. at 721-24. This final rule does not present such a case. In West Virginia, EPA asserted novel authority under section 111(d) of the Clean Air Act to require generation shifting across the electric-power sector. The Court emphasized that EPA's approach would restructure the national mix of electricity generation, impose billions of dollars in compliance costs, affect electricity prices, require coal-plant retirements, eliminate jobs, and require EPA to balance national energy-policy considerations outside its traditional expertise. Id. at 714-16, 728-30.

This rule is materially different in both scope and statutory footing. It concerns the internal administration of a narrow class of Federal personnel appeals involving employees serving probationary or trial periods and certain supervisory or managerial probationary actions. It does not regulate private conduct, impose compliance obligations on the public, restructure any industry, or resolve a question of nationwide economic or social policy. OPM estimates the rule will result in first-year governmentwide costs of approximately $2.75 million and recurring annual governmentwide costs of approximately $1.5 million. Those figures are not remotely comparable to the economic consequences at issue in West Virginia, but the distinction is not merely one of dollars. OPM also does not claim an unheralded power from a vague, ancillary statutory phrase. Congress authorized the President to prescribe rules, regulations, and directives governing probationary periods before certain Federal appointments become final; assigned OPM responsibility for executing, administering, and enforcing civil service rules and regulations and advising the President on matters including tenure and separation; and provided that MSPB appeals exist only for actions made appealable to the Board by “law, rule, or regulation.” 5 U.S.C. 1103(a)(5), (a)(7), 3301, 3302, 3321(a), 7701(a). Further, OPM's predecessor agency, the Civil Service Commission, formerly exercised precisely this authority in hearing limited appeals of probationary terminations.

Congress also did not give probationary and trial period employees the same statutory adverse-action appeal rights provided to covered employees under chapter 75. Chapter 75's definition of “employee” generally excludes individuals serving probationary or trial periods under initial appointments, and courts have long recognized that MSPB jurisdiction over probationary termination appeals was created by OPM regulation rather than by an independent statutory right. See 5 U.S.C. 7511(a)(1); Mastriano, 714 F.2d at 1155; Bante, 966 F.2d at 650.

Accordingly, this rule creates a forum and procedures for a limited regulatory appeal that OPM previously channeled to the MSPB. It does not assert the type of transformative, novel authority of vast economic and political significance that triggered the major questions doctrine in West Virginia. In any event, the rule rests on clear civil service authorities and longstanding regulatory practice.

OPM received several comments, including Commenter 0013, that the proposed rule violated the APA. Specifically, this Commenter argued the 30-day comment period following the proposed rule was unlawfully short in violation of the APA. The Commenter based this argument on multiple sources: first, the APA's mandate that an “opportunity to participate” on proposed rules be provided following a notice of proposed rulemaking; and E.O.s 12866 and 13563, which specify that comment periods should “generally” be at least 60 days.

OPM rejects the argument that the comment period was inadequate as a matter of law or policy. The APA requires agencies to provide interested persons an opportunity to participate in rulemaking through submission of written data, views, or arguments. OPM provided that opportunity. As several appellate courts have held, a 30-day comment period is generally the minimum needed to comply with the APA.\44\

\44\ See Chamber of Com. of the U.S. v. U.S. Sec. & Exch. Comm'n, 85 F.4th 760, 779 (5th Cir. 2023) (“the APA generally requires only a minimum thirty-day comment period.”); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992) (“Although the APA mandates no minimum comment period, some window of time, usually thirty days or more, is . . . allowed for interested parties to comment.”); Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (“When substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.”).

The Commenter's reliance on E.O. 12866 and E.O. 13563 is similarly misplaced. These orders only mandate that comment periods should “generally” be at least 60 days. The policy rationale for that mandate is that stakeholders should have adequate opportunity to meaningfully participate in the notice-and-comment process. Concerning the present rulemaking, OPM received 632 comments, offering perspectives on many aspects of the proposed rule. OPM received hundreds of comments addressing the rule's legal basis, policy justification, procedural design, effect on employees and agencies, relationship to MSPB, relationship to EEOC and OSC processes, possible alternatives, and potential consequences for the civil service. The breadth and specificity of the comments confirm that interested parties had a meaningful opportunity to comment. Factually, it cannot be said that the comment period was insufficient to allow for meaningful feedback on the proposed rule given the feedback that OPM did receive.

Further, in the years since those executive orders were issued, comment periods have not infrequently been shorter, often 30 or 45 days. This is, in part, because agencies, working with the White House, have a great deal of discretion in shortening the comment period based on the facts of the situation. As courts have repeatedly held, “[e]xecutive [o]rders are not judicially enforceable.” \45\ That is, as a general matter, executive orders and other White House guidance on the regulatory process bind executive agencies only as a matter of the internal management of the executive branch. Thus, several Federal courts have specifically held that there is no legal requirement that agencies comply with the requirements specified in E.O.s 12866 and 13563.\46\

\45\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573 (D.C. Cir. 2025) (citing Marin Audubon Soc'y v. Fed. Aviation Admin., 121 F.4th 902, 913 (D.C. Cir. 2024)); see also Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338-39 (4th Cir. 1995) (no private right of action to enforce executive order unless issued pursuant to a statutory mandate or delegation by Congress).

\46\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309, 1326-27 (11th Cir. 2021) (holding that E.O. 12866 and E.O. 13563 specifically are not judicially enforceable); Miller v. Garland, 674 F.Supp.3d 296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604, 2024 WL 4973474 (4th Cir. July 30, 2024) (holding that E.O. 12866 is not judicially enforceable).

Accordingly, the 30-day comment period provided by OPM was not “truncated” but was instead well within the APA's procedural requirements and the period that should be considered reasonable in light of the President's executive order compelling agency action.

OPM also declines to reopen the comment period based on objections to the earlier rule implementing E.O. 14284 and Civil Service Rule XI. This rulemaking concerns the circumstances and procedures for covered appeals under part 751. To the extent commenters addressed Rule XI or the June 2025 rule, OPM has considered those comments where relevant to the design of the part 751 appeal process. But this rulemaking is not the vehicle for reopening all issues resolved in the prior rulemaking. OPM has provided notice and an opportunity to comment on the procedural rule now being finalized.

Federal agency commenters (0302, 0324, 0355, 0401, 0402, 0428, 0446, and 0508) supported the proposed rule. These commenters generally stated that probationary and trial periods are intended to allow agencies to determine whether employees should continue in Federal service before receiving the full procedural protections associated with completed probationary or trial service. The commenters stated that substituting a single appeal to OPM for MSPB appeals would better reflect the limited scope of these appeals and would promote more efficient, predictable, and timely resolution.

Several commenters stated that the current appeals process can discourage supervisors from taking timely action during probationary or trial periods. Commenters 0324, 0355, 0402, 0428, 0446, and 0508 stated that litigation risk, procedural burden, or uncertainty may lead supervisors to tolerate poor performance or misconduct, reassign employees, or allow employees to pass beyond the probationary or trial period without appropriate action. Commenters 0302 and 0401 also stated that many probationary appeals are dismissed for lack of jurisdiction or otherwise do not reach the merits, while still requiring agency resources.

Commenters 0324, 0355, 0446, and 0508 raised concerns about delay in MSPB proceedings, including delay associated with periods when MSPB lacks a quorum. Commenter 0446 described an appeal that remained unresolved for more than six years, and Commenter 0508 stated that delays can increase potential back pay exposure. Commenters 0324, 0355, 0401, 0402, 0446, and 0508 stated that OPM is an appropriate forum because of its Federal human resources role, adjudicatory experience, and ability to administer a centralized process.

Commenters further stated that the rule would support accountability, morale, and mission effectiveness by enabling agencies to address performance, conduct, and suitability concerns during the probationary or trial period. Commenter 0446 also recommended that OPM make final decisions publicly available and searchable online.

OPM agrees with commenters that probationary and trial periods serve an important evaluative function and that the appeal process for the limited matters covered by this rule should be efficient, predictable, and consistent

with that function. OPM also agrees that routing these appeals to OPM will reduce unnecessary procedural burden, conserve MSPB resources, and promote timely resolution while preserving the employee appeal rights addressed in the rule. OPM is finalizing the rule to establish a single OPM appeal process for the matters covered by the rule.

OPM agrees with Commenter 0446 that public availability of final merits decisions will promote transparency, consistency, and predictability in the administration of these appeals. Accordingly, the final rule includes a publication provision at Sec. 751.109(e). Subject to applicable legal limits, including requirements protecting privacy, privileged information, protected personal information, law- enforcement-sensitive information, and other information that may not lawfully be disclosed, OPM will maintain a publicly accessible website containing final decisions issued under this part that address a party's claim on the merits.

Part 11--Probationary and Trial Periods

OPM is adding part 11 to the amendatory instructions and list of subjects because this final rule includes conforming and corrective amendments to Civil Service Rule XI. These amendments are being made in the same rulemaking because they concern the same probationary and trial period framework that governs the appeal procedures established in new part 751.

OPM is correcting Sec. 11.2(a)(2) by replacing the phrase “Reinstatement Priority List” with “Reemployment Priority List.” This is a technical correction. The applicable list is the Reemployment Priority List, and the amendment corrects the terminology used in the regulation without changing the substantive operation of Sec. 11.2. This correction conforms Sec. 11.2(a)(2) to the terminology used throughout OPM's existing placement regulations (under 5 CFR part 330, subpart B) and guidance, replacing an inaccurate label with the correct regulatory name of the existing program.

OPM is also amending Sec. 11.5 to incorporate into the CFR certain forward-looking procedures established by E.O. 14284 for review during initial probationary and trial periods. Specifically, paragraphs (b)- (d) of Section 5 of E.O. 14284 set forth certain procedures for agencies to follow as part of their certification process for continued employment of employees serving probationary or trial periods. In the proposed rule, OPM specifically invited comment on whether and how Rule XI should be modified to expressly incorporate those provisions.

Although these provisions are already in effect and controlling, these requirements from E.O. 14284 are not currently reflected in Civil Service Rule 11. Therefore, OPM amends Rule 11 to incorporate these provisions into the regulations to provide administrative convenience and greater clarity for employees, supervisors, agency officials, and human resources practitioners. OPM has structured the new requirements as paragraphs (e)-(h) in 5 CFR 11.5 and redesignated existing paragraphs accordingly to conform to CFR drafting conventions.

New Sec. 11.5(e) requires each agency head to designate, in writing, one or more agency officials responsible for evaluating the continued employment of employees serving initial probationary or trial periods. This provision ensures that agencies identify accountable officials before the end of the probationary or trial period and that those officials are positioned to assess the needs and interests of the agency, the organizational goals of the agency or the Federal Government, and the efficiency of the service.

New Sec. 11.5(f) requires the designated official to meet with the employee at least 60 days before the end of the employee's initial probationary or trial period. The meeting requirement is intended to make the end-of-period assessment a meaningful management judgment rather than a purely ministerial personnel action.

New Sec. 11.5(g) requires the agency head or designated official, within 30 days before the end of the employee's initial probationary or trial period, to determine whether to finalize the employee's appointment or terminate the employee's service. OPM is adding this provision to align the regulatory text with the structure of Civil Service Rule XI, under which the agency must make an affirmative determination before the appointment is finalized.

New Sec. 11.5(h) requires the agency head or designated official to certify in writing, before finalizing the appointment, that the employee's continued employment will advance the public interest. This certification requirement is central to Civil Service Rule XI. It confirms that completion of a probationary or trial period is not merely the result of the passage of time, but instead reflects an affirmative agency determination that finalizing the appointment is warranted.

OPM is redesignating former paragraphs (e) through (g) of Sec. 11.5 as paragraphs (i) through (k). The redesignation is necessary to accommodate the new procedural provisions added as paragraphs (e) through (h).

OPM is not codifying as a standing CFR requirement the one-time provision in E.O. 14284 requiring agency heads, within 15 days of the order, to identify employees whose initial probationary or trial periods ended 90 days or more from the date of the order. That directive was time-limited and implementation-specific. The permanent CFR text instead codifies the continuing obligations that agencies must follow for employees serving initial probationary or trial periods on an ongoing basis.

Part 230--Organization of the Government for Personnel Management

OPM is revising Sec. 230.402(f) to conform the appeal procedures for emergency-indefinite employees to new part 751. The final rule clarifies that the first year of service of an emergency-indefinite employee is a probationary period and that an agency may terminate the appointment during that period. Where an emergency-indefinite employee is entitled to appeal a termination during the probationary period, the applicable procedures are those set forth in part 751. This conforming change ensures that the appeal route for emergency-indefinite employees is consistent with the new OPM-administered probationary appeal process.

Part 315--Career and Career-Conditional Employment

OPM is revising Sec. 315.201(a) to conform the career-conditional employment regulations to Civil Service Rule XI. The revised text provides that a person employed in the competitive service for other than temporary, term, or indefinite employment is appointed as a career or career-conditional employee subject to the probationary period required by part 11. This amendment clarifies that the probationary- period requirement for career and career-conditional employees is now governed by Civil Service Rule XI in part 11, while preserving the existing career-tenure service requirement.

OPM is also revising Sec. 315.908(b) to replace MSPB with OPM as the forum for appeals by supervisors or managers assigned to nonsupervisory or nonmanagerial positions for failure to complete a supervisory or managerial probationary period. The appealable issues remain limited to allegations that the agency action was based on partisan political reasons or marital status. This

amendment conforms Sec. 315.908 to the new appeal procedures in part 751 and to E.O. 14284's direction that OPM prescribe the circumstances and procedures for probationary and trial period appeals.

Part 432--Performance-Based Reduction in Grade and Removal Actions

OPM is revising Sec. 432.102(f) to clarify which employees are excluded from the performance-based action procedures in part 432. The revised exclusions distinguish between competitive service employees serving probationary periods under initial appointments, competitive service employees in appointments requiring no probationary period who have not completed one year of current continuous employment, preference eligible employees in the excepted service who have not completed one year of current continuous employment, and non-preference eligible employees in the excepted service who have not completed two years of current continuous service in the same or similar positions in an Executive agency under other than a qualifying temporary appointment. These amendments align part 432 coverage with the statutory definitions governing adverse-action coverage and with the new probationary and trial period appeal framework.

Part 751--Probationary and Trial Period Appeals

OPM is adding new part 751 to establish the procedures for appeals that were formerly routed to the MSPB under regulations that have been rescinded or superseded following E.O. 14284. New part 751 identifies the employees who may appeal to OPM, the issues that may be appealed, the deadlines and procedures for filing appeals, the required agency response, representation rules, OPM's adjudication procedures, reconsideration, Director review, finality, and publication of final decisions. Section 751.101--Right To Appeal

Section 751.101(a) establishes the basic right to appeal to OPM. Covered employees may appeal a termination during a probationary or trial period required under part 11 or another authority administered by OPM, and covered supervisors or managers may appeal assignment to a nonsupervisory or nonmanagerial position for failure to complete a supervisory or managerial probationary period required under subpart I of part 315. This provision implements Civil Service Rule 11.6 and replaces the prior MSPB forum with an OPM-administered appeal process.

In the final rule, OPM has revised Sec. 751.101(a) to conform the general right-of-appeal provision to the appealable actions already addressed elsewhere in Sec. 751.101. In addition to terminations during a probationary or trial period and assignments to nonsupervisory or nonmanagerial positions following failure to complete a supervisory or managerial probationary period, the final text now expressly references an agency's decision not to certify continuation of an appointment and an agency's failure to certify and finalize an appointment. This revision is clarifying and nonsubstantive. It does not create any new appeal right, expand the grounds for appeal, alter the burden of proof, or change the procedures governing appeals under part 751. Rather, it ensures that paragraph (a) accurately reflects the actions addressed in paragraph (c) and avoids any implication that noncertification or failure-to-certify claims identified in paragraph (c) fall outside the threshold right-of-appeal provision. Such claims remain appealable only to the extent permitted by paragraphs (b) through (d), including the limited grounds specified in paragraph (c).

Section 751.101(a) also establishes that an individual serving a probationary period does not have a right to appeal their termination under this part if the employee has completed one year of current continuous service under other than a temporary appointment limited to one year or less and is not otherwise excluded by the provisions of that subpart. Instead, the appropriate procedures established under 5 CFR part 432 or 752 may apply unless otherwise excluded by the provisions of those parts. OPM notes that it has amended referenced provisions of 5 CFR parts 432 and 752 in its rulemaking under RIN 3206- AO80 (90 FR 17182); however, the cross-references in this rule would be unaffected by the changes initiated in that rulemaking.

Section 751.101(b) places the burden on the appellant to establish timeliness, OPM jurisdiction, and the appealable issue by a preponderance of the evidence. OPM is adopting this standard because the appellant is the party invoking OPM's limited regulatory jurisdiction. The standard is also consistent with the narrow scope of probationary and trial period appeal rights and with OPM's intent to provide a streamlined process focused on threshold jurisdictional and appealability issues.

Section 751.101(c) identifies the issues that may be appealed to OPM. These issues mirror those under subpart I and the now-rescinded subpart H of part 315. An employee may appeal allegations that a covered action was based on partisan political reasons or marital status. For this purpose, the covered actions include terminations not required by statute, assignments to nonsupervisory or nonmanagerial positions under Sec. 315.907, an agency's decision not to certify continuation of an appointment during a probationary or trial period, and an agency's failure to certify and finalize such an appointment.

Section 751.101(c)(2) preserves a limited procedural appeal for terminations based in whole or in part on conditions arising before appointment. In those cases, the employee may challenge whether the agency failed to provide advance written notice stating the reasons for the proposed action, a reasonable time to answer and furnish affidavits, and a written decision at or before the effective date of the action. These procedures preserve the historically limited procedural protections associated with pre-appointment reasons without converting probationary or trial period terminations into ordinary adverse actions under chapter 75.

Section 751.101(d) provides that no other issues are appealable under part 751. OPM is adopting this limitation to maintain the narrow historical scope of probationary appeal rights and to implement E.O. 14284's direction to establish streamlined procedures. The rule does not make every alleged violation of Civil Service Rule XI independently appealable. For example, an alleged failure to provide written notice of the effective date under Sec. 11.5(i), or an alleged failure to conduct the meeting required under Sec. 11.5(f), is not by itself an independent basis for reversal under part 751 unless the employee also establishes one of the appealable issues identified in Sec. 751.101(c).

Section 751.101(e) provides that part 751 is the sole means of appealing terminations during probationary or trial periods, but clarifies that the rule does not preclude an employee from filing a complaint, appeal, or other matter within the jurisdiction of the EEOC, an Inspector General, the MSPB, the Department of Labor Veterans' Employment and Training Service, or OSC where an independent legal basis for such jurisdiction exists. OPM is revising the exclusivity language to make clear that part 751 is exclusive

only for appeals covered by this part and that the rule does not displace independent statutory or regulatory remedial schemes administered by other entities.

Section 751.101(e) also provides that a party cannot obtain judicial review of a decision under part 751. OPM is including this language to reflect the limited regulatory nature of the appeal right and the absence of a statutory judicial-review provision for OPM decisions issued under this part. This limitation does not bar judicial review where another statute independently provides it, such as in certain discrimination matters processed through the EEO framework.

OPM has revised the exclusivity language in Sec. 751.101(e) to refer to the “sole means of appealing a covered action under Sec. 751.101(a),” rather than the sole means of appealing “terminations.” This change is clarifying and nonsubstantive. As revised, Sec. 751.101(a) identifies several covered actions, including termination during a probationary or trial period, assignment to a nonsupervisory or nonmanagerial position after failure to complete a supervisory or managerial probationary period, noncertification of continuation of an appointment, and failure to certify and finalize an appointment. Referring only to “terminations” in the exclusivity provision could create unnecessary ambiguity about whether the same OPM appeal procedures apply to the other covered actions identified in Sec. 751.101(a).

Section 751.101(f) defines “employee” for purposes of part 751. The definition limits part 751 coverage to employees who had comparable regulatory appeal rights before E.O. 14284 or who are otherwise specifically covered by the final rule. The definition includes certain competitive service probationers, supervisors and managers serving supervisory or managerial probationary periods, emergency-indefinite employees in their first year of service, and employees appointed under part 307 before the end of their first year on an initial appointment.

OPM is also clarifying that excepted service employees outside part 307 are not covered by part 751 and may not appeal a trial period termination under this part unless otherwise entitled by statute. This limitation preserves the pre-E.O. scope of appeal rights. Before E.O. 14284, subpart H of part 315 did not create a general appeal right for all excepted service employees serving trial periods. The final rule therefore does not create a new across-the-board trial period appeal right for excepted service employees who did not previously possess one. Section 751.102--Procedures for Submitting Appeals

Section 751.102 establishes the procedures for filing appeals and requests for reconsideration. OPM is requiring use of an electronic filing system to promote efficient case intake, consistent service, reliable records, and timely adjudication.\47\ OPM is replacing the placeholder reference to a specific URL with a reference to the electronic filing system identified on OPM's website. This approach avoids placing a particular web address in regulatory text and allows OPM to update filing instructions as technology or system design changes.

\47\ Commenter 0483 suggests that establishing an e-filing system is more complex than OPM anticipates. OPM disagrees and has already established an e-filing system.

Section 751.102(b) establishes a 30-calendar-day deadline for filing an appeal. The rule specifies how to compute the filing deadline, including treatment of weekends and Federal holidays, and provides that late filings may be excused only upon a showing of good cause. This deadline promotes prompt resolution of probationary and trial period appeals while preserving limited flexibility for circumstances warranting an extension.

Section 751.102(c) requires parties and representatives to register as e-filers and accept electronic service, unless OPM grants an exemption for good cause. The final rule also removes the sentence suggesting that withdrawal of e-filing registration may preclude future re-registration. OPM is deleting that language to avoid an unnecessarily categorical consequence that could impair access to the appeal process. OPM will instead administer registration, withdrawal, re-registration, and good-cause exemptions through the procedures posted on OPM's website and case-specific instructions. Section 751.103--Form and Content of Appeal and Agency Response

Section 751.103(a) establishes the required contents of the initial appeal, including the basis for the appeal, identifying and contact information for the appellant and any representative, and supporting documentation. This provision ensures that OPM and the agency have sufficient information to identify the appealed action and the issues the appellant is raising.

Section 751.103(b) establishes the agency response requirement. The final rule adds a list of documents that must be included, at a minimum, in the agency record of the action. The agency record must include all documents considered or relied upon by the agency in taking the action, the notice of action and effective date, documents showing the appellant's appointment, service history, and probationary or trial period status, any written certification, noncertification, or failure- to-certify record under 5 CFR part 11, any documents supporting the agency's asserted reasons, and a certification that the agency has produced the complete record considered by the deciding official or otherwise relied upon by the agency. In addition, OPM is specifying that the agency must produce the complete agency record to OPM, but may redact or withhold information on the copy served upon the appellant to the extent necessary to comply with the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law.

OPM is adding this minimum-record requirement to promote fairness, transparency, and efficient adjudication. Because part 751 appeals will generally be decided on the written record, it is important that the agency provide the materials necessary for OPM to determine jurisdiction, timeliness, appealability, and the merits of any appealable claim. The agency certification requirement also addresses concerns that an agency could selectively produce records or omit materials relevant to the appealed action.

Section 751.103(c) permits the appellant to file a reply to the agency response within 15 calendar days. The final rule clarifies that the reply generally may address only factual and legal issues raised by the agency response but may raise a new allegation of error if the basis for that allegation rests on information first disclosed in the agency response or if OPM grants leave for good cause. OPM is adding this exception to avoid unfairness where an appellant could not reasonably have raised an issue before seeing the agency's record or response. This change balances the need for a streamlined process with the need to provide a meaningful opportunity to respond to newly disclosed information.

Section 751.103(d) allows the appellant, the appellant's representative, and the agency to inspect OPM's appellate record upon request, subject to any Privacy Act requirements, classified information or national security restrictions, OPM protective orders, or any other

applicable limitations required by law. Section 751.103(e) requires parties to serve each other with copies of information submitted to OPM and to include a certificate of service, subject to the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law. These provisions help ensure that each party has access to the materials OPM may consider.

Section 751.103(f) allows OPM to accept untimely filings upon a showing of good cause. This provision gives OPM limited flexibility to address unusual circumstances while preserving the overall timeliness requirements of part 751. Section 751.104--Employee Representatives

Section 751.104 permits an appellant to select a representative of the appellant's choice, subject to specified limitations. OPM is retaining the appellant's ability to obtain assistance while clarifying that, if the selected representative is a Federal employee, the representative may not perform representational functions in a duty status, including while on official time under 5 U.S.C. 7131, and may not claim agency reimbursement for expenses incurred while performing the representational function. OPM is adopting this limitation because part 751 appeals are regulatory probationary or trial period appeals and are not proceedings under chapter 71. Nothing in Sec. 751.104 prevents an appellant from selecting a union official or other representative, but the rule does not create a right to paid official time for that representation.

Section 751.104 also permits OPM or the responsible agency to disallow a representative when the representative is an employee of the responsible agency or OPM and the representative's activities would cause a conflict of interest or position. Because Federal employee representatives may not perform representational functions while in a duty status, additional exceptions for priority Government needs or unreasonable Government costs are unnecessary, and the final rule does not include them. This limitation is consistent with OPM's existing approach in other administrative appeal contexts and is intended to protect agency operations and the integrity of the adjudicatory process. Section 751.105--Adjudication of Appeals

Section 751.105(a) provides that OPM will assign personnel to adjudicate appeals filed by employees of agencies other than OPM. The final rule adds safeguards to ensure that OPM adjudicators are insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action. OPM is adding this language to strengthen the appearance and reality of neutral adjudication.

Section 751.105(a) also prohibits OPM adjudicators from considering material ex parte communications concerning the merits of an appeal. If such communication occurs, OPM will place a summary of the communication in the record and provide the parties a reasonable opportunity to respond, unless disclosure is prohibited by law. This provision promotes fairness and transparency while recognizing that some information may be protected from disclosure by statute, regulation, privilege, or other applicable legal limits.

The final rule further provides that no employee may adjudicate an appeal if the employee has a relationship with the appellant or, during the preceding two years, was an employee of the agency that is a party to the appeal. This restriction is designed to reduce conflict concerns and promote confidence in OPM's adjudicatory process. When necessary, OPM may assign or obtain the services of an administrative law judge to preside over an appeal.

Section 751.105(b) provides special procedures for appeals filed by OPM employees. OPM will assign an administrative law judge to adjudicate such appeals. To preserve both decisional independence and constitutionally sufficient supervision, OPM will not disturb the administrative law judge's initial decision in an OPM-employee appeal unless a party shows harmful procedural irregularity, clear error of law, or a material factual error that affected the outcome. This approach provides an additional structural safeguard when OPM is both the employing agency and the adjudicatory agency.

OPM has considered whether assigning an administrative law judge to adjudicate appeals is consistent with 5 U.S.C. 554, 556, and 557. OPM concludes that it is. Those provisions do not prohibit OPM from assigning a properly appointed administrative law judge to serve as a neutral adjudicator in appeals filed by OPM employees or where there are other conflict-of-interest concerns. Section 554 applies only to adjudications required by statute to be determined on the record after opportunity for an agency hearing and, in any event, excludes matters involving the selection or tenure of an employee, except matters involving administrative law judges appointed under 5 U.S.C. 3105. Sections 556 and 557 apply when a hearing is required to be conducted under section 556. Probationary termination appeals under this part are employee-tenure matters and are not formal APA adjudications under sections 554, 556, and 557.

OPM is assigning an administrative law judge in OPM employee appeals for a narrower and different reason: to insulate adjudication of appeals filed by OPM's own employees from ordinary agency involvement and to promote the appearance and reality of neutral decision-making. This approach is consistent with the approach used by the MSPB at 5 CFR 1201.13 to adjudicate appeals arising from its employees. The assignment of an administrative law judge under this section does not, by itself, make sections 554, 556, or 557 applicable to the appeal, nor does it create any procedural right not otherwise provided by this part.

Section 751.105(c) authorizes OPM to audit or investigate an agency's action. Where OPM conducts an audit or investigation to ascertain additional facts, it will provide the parties with the results and provide a reasonable opportunity to submit arguments or additional information in support of their positions. OPM notes that the final rule removes the phrase “and exclusive” from “sole and exclusive discretion” as an editorial simplification; OPM retains discretion to determine whether an audit or investigation is warranted. The section also explains when a hearing may be used: where the written record is insufficiently developed to decide a material factual issue, or where a disputed issue of witness credibility is material to the outcome. OPM is adopting this approach to preserve a primarily written, streamlined process while allowing additional fact development when necessary and efficient.

Commenters 0004, 0454, 0455, and others asserted that the phrase “in the interest of justice,” which describes when OPM may audit or investigate an agency's action, is unclear.

OPM agrees and is revising the standard for audits and investigations in Sec. 751.105 to provide greater clarity and to address commenters' concerns that

the proposed phrase “in the interest of justice” is vague. Under the final rule, OPM may request additional information from a party, and it may audit or investigate an agency action when it determines, in its sole discretion, that the existing record is insufficient to resolve a material issue within OPM's jurisdiction, and that the audit or investigation is reasonably likely to produce information material to resolving that issue.

This standard preserves OPM's ability to develop the record where necessary while preventing audits or investigations from becoming routine discovery. Part 751 appeals will generally be resolved on the written record because the appealable issues are narrow. But OPM recognizes that a written-record process must include a mechanism to address material gaps, inconsistencies, or credibility issues that cannot fairly be resolved on the existing submissions. The final rule therefore permits targeted audits or investigations where additional fact development is needed to decide jurisdiction, timeliness, appealability, or the merits of a claim properly before OPM.

The standard also limits OPM's authority. An audit or investigation must be tied to a material issue within OPM's jurisdiction under Sec. 751.101(c). OPM will not conduct an audit or investigation based solely on speculation, generalized disagreement with the agency's action, or a request for discovery unrelated to an appealable issue. The rule thus provides a safeguard against incomplete or unreliable records without creating an automatic right to discovery or a hearing in every case.

Paragraph (d) establishes that OPM will provide written notification of its decision. Paragraph (e) establishes OPM's authority to award remedies under 5 U.S.C. 1103(a)(5) and 5596(b). Where OPM grants an employee's appeal, it will order relief including correction of the personnel action and any back pay, interest, and reasonable attorney fees consistent with 5 CFR part 550 subpart H. Paragraph (e) also establishes that if an agency timely requests reconsideration of an initial decision or OPM reopens and reconsiders an initial decision, the agency must continue to provide the relief ordered unless OPM issued an order staying any such relief. OPM will not order a stay, however, that would deprive the employee of pay and benefits while the initial decision is pending reconsideration. Section 751.106--Sanctions and Protective Orders

Section 751.106 authorizes OPM to issue protective orders and cease-and-desist directives. OPM stated in the proposed rule that it believes that MSPB procedures, while providing for protective orders, are inadequate to protect Federal employees from threats and harassment.

Some commenters objected that proposed Sec. 751.106 gave OPM broad protective order authority and could chill lawful communications by appellants, witnesses, employees, or union representatives. Commenters objected in particular to language that could be read to restrict communications that might foreseeably lead to harassment or to prohibit use of any information related to an appeal for any purpose unrelated to the adjudication.

OPM has considered these comments and is narrowing Sec. 751.106 in the final rule. The final rule does not adopt the broad “reasonably be foreseen to lead to harassment” formulation and does not authorize OPM to bar use of any information related to an appeal for any purpose whatsoever. Instead, OPM may issue a protective order or cease-and- desist directive only to protect the integrity of the adjudicatory process; prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information; or prevent misuse of nonpublic information obtained through the appeal. The final rule also adds two limiting principles. Any protective order must be no broader than reasonably necessary, and any such order must not restrict lawful communications protected by law.

OPM declines to remove protective-order authority entirely. Because OPM will adjudicate appeals under part 751, it must have reasonable procedural tools to protect witnesses, parties, protected personal information, nonpublic appeal materials, and the integrity of the adjudicatory record. OPM also retains authority to act sua sponte or preemptively where necessary, because threats to the process, improper witness contact, or disclosure of protected information may arise before a party files a motion or before harm has fully occurred. That authority is limited to matters connected to an appeal under part 751 and to the specific purposes identified in Sec. 751.106(a).

The final rule does not prohibit an appellant from discussing the appellant's own experience, seeking advice or representation, communicating with a union representative or attorney, filing or pursuing a matter before another authorized forum, making protected whistleblower disclosures, communicating with Congress, or engaging in any other communication protected by law. As revised, Sec. 751.106 is a tailored case-management provision designed to protect the fairness and integrity of the adjudicatory process.

Commenter 0111 suggested that OPM should revise MSPB regulations including, for example, by directing MSPB to be more generous in its use of protective orders to prevent harassment and other types of improper behavior and address other areas in which OPM believes the MSPB's actions, or lack thereof, are deficient.

Commenter 0111 is not the first to propose OPM issue regulations superimposing its preferred approach on MSPB when handling classes of appeals before the Board. In fact, OPM has previously issued regulations directing MSPB how to handle appeals from reduction in force (RIF) actions. 50 FR 35507 (1985). However, OPM lacks statutory authority to dictate appeal procedures--whether RIFs, or any other class of personnel appeals--to the MSPB when the venue for the appeal is the MSPB. As explained in American Federation of Government Employees v. OPM, OPM exceeds “its designated statutory authority by issuing a regulation that purports to instruct the MSPB how to conduct personnel appeals.” 821 F.2d 761, 768 (D.C. Cir. 1987). That authority lies with the MSPB itself. “Congress' specific delegation to MSPB of autonomy over its own appellate procedures compels just the opposite conclusion: if OPM chooses to use the MSPB for dispute resolutions, it must take that statutory device as it finds it.” Id., at 769.

Section 751.106(b) authorizes OPM to impose case-related consequences when a party fails to comply with an order issued under Sec. 751.106(a). OPM may draw adverse inferences, prohibit the noncompliant party from introducing evidence or relying on parts of the record, or eliminate appropriate portions of the noncompliant party's filings or submissions from consideration. These sanctions are necessary to give effect to OPM's orders and to protect the fairness and integrity of the adjudicatory process.

Commenter 0292 raised a concern that OPM's authority to issue preventative protective orders could be exercised in bad faith and that an appellant could lose an appeal based on an alleged violation of such an order. OPM has considered this concern and has revised the final rule to reduce the risk of

overbroad or improper use of protective-order authority.

As finalized, Sec. 751.106 is not a general authority for OPM to restrict speech, control communications unrelated to an appeal, or create a procedural trap for appellants. OPM may issue a protective order or cease-and-desist directive only for specified process- integrity purposes: to protect the integrity of the adjudicatory process; prevent threats, intimidation, targeted harassment, improper witness contact, or disclosure of protected personal information; or prevent misuse of nonpublic information obtained through the appeal. The final rule further provides that any protective order must be no broader than reasonably necessary and must not restrict lawful communications protected by law. These limitations directly address commenter concerns that the proposed language could be read too broadly.

OPM also clarifies that a violation of a protective order will not automatically result in denial or dismissal of an appeal. Section 751.106 is a case-management provision, not a dispositive merits rule. If a party violates a lawful protective order, OPM may impose only case-related sanctions appropriate to the violation, such as drawing an adverse inference, limiting a party's reliance on improperly used evidence, or excluding appropriate portions of a filing or submission. Any such consequence must be tied to the violation and to the integrity of the adjudicatory process; it may not be used to avoid deciding the appealable issues under Sec. 751.101(c).

OPM further disagrees that the possibility of bad faith justifies eliminating protective-order authority altogether. Any adjudicatory system requires tools to protect parties, witnesses, personal information, nonpublic appeal materials, and the integrity of the record. The final rule addresses the risk identified by Commenter 0292 by narrowing the grounds for protective orders, requiring tailoring, preserving lawful protected communications, limiting available sanctions to case-related consequences, and providing written decisions subject to reconsideration and Director review before finality. OPM therefore declines to remove preventative protective-order authority, but has narrowed and clarified Sec. 751.106 to ensure that the authority is used only to protect the fairness and integrity of the part 751 adjudication. Sections 751.107, 751.108 and 751.109--Reconsideration, Director Review, and Finality

Section 751.107 creates a process for reconsideration of an initial decision. Either party may request reconsideration within 30 calendar days, and OPM may also reopen and reconsider an initial decision on its own initiative. The grounds for reconsideration include erroneous material factual findings, legal error affecting the outcome, new and material evidence or legal argument that was unavailable despite due diligence when the record closed, or other good cause. OPM is including this reconsideration process to provide an internal mechanism for correcting material errors while preserving the streamlined nature of part 751 appeals.

Section 751.108 permits the OPM Director, on the Director's own initiative and before a decision becomes final under Sec. 751.109, to reopen and reconsider an initial decision or a reopened and reconsidered decision. In response to comments expressing concern that Director review could be too open-ended, the final rule identifies nonexclusive considerations that may inform the Director's exercise of this authority. These include whether the decision may contain clear legal error, may rest on an erroneous finding of material fact, may involve an issue of exceptional importance, may affect the governmentwide administration of civil service laws, rules, regulations, or OPM policy, may conflict with another OPM decision, or may otherwise warrant Director review.

This revision preserves the Director's responsibility for final agency action and ensures principal-officer oversight of important legal, factual, consistency, policy, and governmentwide civil service issues before finality attaches. At the same time, the final rule clarifies that Director review is sua sponte and does not create a separate right for a party to request Director review; parties seeking reconsideration must proceed under Sec. 751.107. If the Director reopens and reconsiders a decision under Sec. 751.108, the Director may take any action available under Sec. 751.107(c).

Commenters 0206, 0207, 0440, 0452, and others contended that the rule violates the Appointments Clause of the Constitution, pursuant to Lucia v. SEC, in which the Supreme Court held that ALJs presiding over enforcement proceedings were exercising significant authority and therefore constituted Officers of the United States. See Lucia v. SEC, 585 U.S. 237 (2018). Commenters argue that adjudicators under this rule will similarly exercise significant authority.

OPM agrees in part. Although it is not judicially established that adjudicators under this rule will be Officers of the United States, there are substantial arguments that they will be. To ensure consistency with the Appointments Clause, the Director of OPM--who is authorized by 5 U.S.C. 1103(a)(2) to appoint individuals to be employed by OPM--will appoint, or ratify the appointment of, each official who adjudicates appeals under this rule. Article II vests executive power in the President, who may rely on subordinate officials to carry out that authority. OPM recognizes, however, that supervision and review by the Director do not by themselves resolve the Appointments Clause question. In both Freytag v. Commissioner, 501 U.S. 868 (1991), and Lucia v. SEC, 585 U.S. 237 (2018), the adjudicators held to be officers were subject to review by principal officers; the availability of higher-level review therefore does not mean that an adjudicator is not an officer subject to the Appointments Clause. United States v. Arthrex, Inc., 594 U.S. 1 (2021), in turn, addressed whether administrative patent judges were principal or inferior officers--not whether they were officers at all--and confirmed that decisions of inferior officers must be subject to direction and review by duly appointed principal officers. Because the Director will appoint or ratify the appointments of the officials who adjudicate appeals under this rule and retains full review authority over their decisions, the rule satisfies both requirements. This final rule thus responds to neutrality and accountability concerns raised by commenters while preserving final agency supervision within OPM's record-based adjudicatory framework.

Section 751.109 describes the process by which OPM's initial decision becomes its final decision. Under Sec. 751.109(a), an initial decision becomes OPM's final decision 30 calendar days after issuance unless, before that time, a party timely requests reopening and reconsideration under Sec. 751.107 or the Director reopens the decision under Sec. 751.108. Under Sec. 751.109(b), a timely reconsideration request suspends finality: if OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes final 30 calendar days after issuance of the denial or dismissal unless the Director intervenes, and if OPM grants the request, the resulting reopened and reconsidered decision becomes final as provided in that paragraph. Under Sec. 751.109(c), an untimely request does not suspend finality. Under

Sec. 751.109(d), a decision by the Director that disposes of the appeal is OPM's final decision and is effective upon issuance; if the Director remands the appeal or directs further proceedings, any resulting decision becomes final under Sec. 751.109.

OPM views this appellate process as necessary to ensure that the Director is able to sufficiently supervise adjudicators and avoid any serious constitutional concerns from having subordinate officials wield executive authority. Under Article II, the Constitution vests executive power in the President who must rely upon subordinates to exercise his authority. Adjudicators assigned to adjudicate appeals under this rule exercise significant authority and are therefore likely inferior officers of the United States. Accordingly, their appointments will be made, or ratified, by the Director consistent with the Appointments Clause and 5 U.S.C. 1103(a)(2), and their decisions will be supervised and reviewable by the Director, a principal officer appointed by the President with Senate consent.

Section 751.109(e) requires OPM to maintain a publicly accessible website containing final decisions issued under part 751 that address a party's claim on the merits, subject to applicable limits. Final merits decisions not made publicly available must be made available upon request by a concerned party. OPM is including this provision to promote transparency, consistency, and predictability in the administration of part 751 while preserving appropriate limits on public disclosure.

Part 752--Adverse Actions

OPM is revising Sec. 752.201(b)(1) and (2) to clarify coverage for suspensions of 14 days or less. The revised text distinguishes between competitive service employees who have completed a probationary period and competitive service employees who have completed one year of current continuous employment in the same or similar positions under other than a temporary appointment limited to one year or less. This amendment aligns the coverage language with the statutory and regulatory distinction between probationary employees and employees who have acquired coverage under the adverse-action procedures.

OPM is revising Sec. Sec. 752.401(c)(1), 752.401(c)(2)(i), 752.401(d)(10), and 752.401(d)(12) to conform part 752 coverage to Civil Service Rule XI and the new part 751 process. The revised text excludes competitive service employees serving probationary periods unless they meet the applicable coverage requirements and separately addresses nonpreference eligible employees serving trial periods under initial excepted service appointments pending conversion to the competitive service. These conforming amendments ensure that employees who remain in probationary or trial period status are directed to the appropriate limited appeal procedures, while employees who have obtained statutory adverse-action coverage remain governed by part 752 where applicable.

On April 24, 2025, the President issued E.O. 14284, which rescinded the regulations in subpart H of part 315 of title 5, including the circumstances and procedures for filing an appeal from removal during a probationary period. Thus, this rulemaking is necessary to prescribe the circumstances under, and procedures by which, employees terminated during a probationary or trial period may appeal to OPM. OPM believes this rule balances the needs of promoting greater accountability of the Federal workforce while also providing an avenue for probationary or trial period employees to appeal removals. Reinstating MSPB procedures would unnecessarily add complexity to a process designed for Federal agencies to evaluate whether it is in the public's interest to retain newly hired employees into the Federal service. When appealing to the MSPB, employees have a statutory right to a hearing when the matter is within the MSPB's jurisdiction. 5 U.S.C. 7701(a). And before reaching a hearing, MSPB regulations allow the parties to engage in discovery. 5 CFR 1201.71--1201.75. These procedures unnecessarily delay and increase costs of the adjudication of appeals that could be more efficiently accomplished by limiting the transactional costs of litigation and adjudication.

Many Federal agencies and several commenters who support the shift of probationary appeals from MSPB to OPM cite the fact that MSPB was designed for tenured employee appeals and that OPM can adjudicate probationary appeals more efficiently and expediently. This shift is expected to reduce unnecessary litigation. Furthermore, agencies cite the administrative burden of litigation at MSPB as a troublesome reason why supervisors and managers do not remove ineffective employees during probationary or trial periods and allow these employees to become tenured.

As of September 30, 2025, roughly 1,037 cases were pending before the full Board at MSPB headquarters awaiting petition-for-review decisions, following a period when the Board lacked a quorum to issue decisions. Backlogs of that size do not clear quickly. Moreover, of the 9,050 cases that the MSPB processed in FY 2025, only 55.8 percent were resolved within 120 days. This means that nearly half of Federal employees who filed appeals waited more than four months for an initial decision. This is before any petition for review to the full Board.\48\ Allowing probationary appeals to take months, or even years, when accounting for full MSPB review is inconsistent with notions of efficient adjudication. There is a cost to delay, and this is especially the case for agencies and probationary employees where the grounds for review are statutorily limited.

\48\ Merit Systems Protection Board, FY 2025 Annual Performance Report 14 (2025), available at https://www.mspb.gov/about/annual_reports/MSPB_APR_for_FY_2025.pdf.

Under this rule, OPM will adjudicate a limited number of issues using streamlined procedures that reduce the administrative burden to the government. OPM believes, along with the Federal agencies that commented, that this administrative burden has been one factor that has inhibited supervisors from fully utilizing probationary periods.\49\ Additionally, this rule gives OPM jurisdiction over appeals from supervisors and managers assigned to nonsupervisory and nonmanagerial positions who fail their probationary period. This is necessary to streamline the procedures of all appeals related to probationary periods and promote consistency between how such probationary periods are treated.

\49\ See U.S. Government Accountability Office, Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance 7 (2015), available at https://www.gao.gov/assets/gao-15-191.pdf.

Numerous commenters argued that OPM has not adequately explained the benefits of the rule or justified moving probationary appeals from MSPB to OPM. Many commenters defended current MSPB procedures. Commenters 0342, 0400, 0409, and 0503 maintained that the proposed rule does not identify a failure in the MSPB process, evidence of a problem requiring change, or any benefit from that change. Commenters 0440 and 0450 argued that the rule transfers adjudications from MSPB to OPM without explaining why that transfer is beneficial, and state that MSPB is a preferable adjudicatory organization. Commenters 0444 and

0587 stated that OPM must explain in greater detail why MSAC would be a better channel for adjudicating appeals, rather than relying on criticism of MSPB's prior lack of a quorum. Commenters 0312, 0394, 0423, and others asserted that MSPB's lack of a quorum was a manufactured crisis used to justify permanent structural change and suggested that the rule would not be necessary if MSPB were fully staffed. Commenter 0494 stated that OPM has not provided sufficient empirical evidence that MSPB procedures are unworkable or that transferring appeals to OPM will improve efficiency, including through analysis of case volume, resource requirements, and safeguards. Commenters 0175, 0202, 0212, 0220, and 0237 further stated that placing probationary and trial period appeals at OPM instead of MSPB creates a risk of inconsistent implementation across agencies and components.

OPM has considered these comments and disagrees. OPM does not premise this final rule on a conclusion that MSPB is unable to adjudicate personnel matters generally, or that MSPB administrative judges are not capable adjudicators. The issue is narrower. Probationary and trial period appeals are limited regulatory appeals involving a narrow set of issues. They are not ordinary chapter 75 adverse-action appeals, and Congress did not create a general statutory right for probationary employees to appeal probationary terminations to MSPB. MSPB's prior role in this limited class of appeals existed because OPM regulations assigned that role to MSPB. Following E.O. 14284 and Civil Service Rule XI, MSPB no longer hears probationary appeals under 5 CFR part 315, subpart H. OPM has determined that these limited appeals should be adjudicated through a streamlined OPM process tailored to the narrow grounds that remain appealable.

Under the prior regulatory framework, a probationary or trial period appeal within MSPB's jurisdiction could proceed through the same multi-stage adjudicative structure that governs other MSPB appellate cases, even though the issues in such appeals are narrow. The prior subpart H probationary appeal rights were limited: under 5 CFR 315.806, an employee could appeal certain probationary terminations to MSPB only on specified grounds, including partisan political reasons, marital status, certain procedural defects for actions covered by the prior Sec. 315.805, and discrimination claims only when raised in addition to those limited grounds. Despite the limited nature of those grounds, however, appeals raising these claims would nonetheless have to proceed through the following multi-stage process:

First, once an appeal was filed, the matter could be assigned to an MSPB administrative judge. MSPB part 1201 procedures authorize administrative judges to manage the proceeding, rule on motions, regulate hearings, address discovery disputes, receive evidence, and issue an initial decision. MSPB procedures also provide that an appellant generally has a right to a hearing on the merits if the appeal is timely and within MSPB's jurisdiction, and they authorize discovery into relevant, nonprivileged matters.

Second, after the administrative judge issued an initial decision, either party could seek review by the full Board. Under MSPB rules, an initial decision becomes final after 35 days unless a petition for review or other specified filing prevents finality. If a petition for review is filed, the Board may deny review, grant review, reopen the case, or issue a final decision disposing of the action.

Third, after a final MSPB decision, judicial review may be available under 5 U.S.C. 7703. That provision allows an employee or applicant adversely affected or aggrieved by a final MSPB order or decision to obtain judicial review, generally by filing a petition in the Federal Circuit or another court of appeals of competent jurisdiction, depending on the type of case, within the statutory time period.

That multi-stage process may be appropriate for actions Congress made appealable to MSPB under chapter 75 or other statutes. But OPM has determined that it is not necessary or well-tailored for the limited regulatory appeal rights available to employees serving probationary or trial periods. A probationary or trial period exists before an appointment becomes final and is designed to allow the Government to determine whether the employee should continue in Federal service. See 5 U.S.C. 3321(a). The issues in these appeals ordinarily turn on threshold and record-based questions, such as whether the appellant was serving a covered probationary or trial period, whether OPM has jurisdiction, whether the appeal was timely and properly filed, whether the termination falls within the limited grounds for appeal, whether required procedures were followed, and whether any violation prejudiced the appellant.

Rather than reinstating these multi-stage MSPB procedures designed to adjudicate adverse actions, the final rule provides a streamlined OPM process tailored to probationary and trial period appeals. Under revised Sec. 751.101, a covered employee may file an appeal with OPM on the grounds specified in the regulation. Under Sec. 751.102, the appeal must be filed within the prescribed time limits and through OPM's electronic filing system unless OPM grants an exemption for good cause. This filing structure is intended to provide a uniform intake process, reduce procedural disputes, and allow OPM to identify jurisdictional and timeliness issues promptly.

The OPM process is designed to put the relevant agency record before the adjudicator early. Under revised Sec. 751.103, the agency must file a response within the prescribed period and produce the complete agency record to OPM. For a probationary or trial period appeal, that record should include the appointment documents, personnel-action records, probationary or trial period status documentation, notice of termination, effective-date materials, documents relied upon by the agency in taking the action, any required notice or opportunity-to-respond materials, and any other records necessary to determine jurisdiction, compliance with applicable procedures, and prejudice. The agency must serve the appellant with the agency record, subject only to legally required redactions or withholding, such as those required by the Privacy Act, applicable privileges, classified-information or national-security requirements, OPM protective orders, or other disclosure limits required by law.

The final rule also preserves meaningful fact development without making discovery and hearings automatic in every case. The appellant may reply to the agency response, and OPM may permit new allegations where the basis rests on information first disclosed in the agency response or where good cause exists. Under revised Sec. 751.105, OPM may require additional information and may conduct further proceedings where necessary and efficient to resolve a material issue within OPM's jurisdiction. A hearing remains available where the written record is insufficiently developed to decide a material fact or where a material credibility issue requires live testimony. This approach preserves the tools needed to resolve disputed material issues while avoiding unnecessary discovery, hearing practice, and litigation costs in cases that can be decided on the record.

Finally, instead of Board-level review and subsequent MSPB-based judicial review, the final rule provides for OPM reconsideration, limited Director review before finality, and final OPM action.

Under revised Sec. 751.107, either party may seek reconsideration of an initial decision on the grounds specified in the rule, and OPM may reopen and reconsider where appropriate. Under revised Sec. 751.108, the Director may review a nonfinal decision on the Director's own initiative before finality, including where review is warranted by potential legal error, material factual error, an issue of exceptional importance, governmentwide civil service administration, conflict among OPM decisions, or another comparable reason. Once a decision becomes final under Sec. 751.109, there is no further administrative appeal under part 751. The final rule separately preserves collateral matters within the jurisdiction of other forums where applicable.

OPM concludes that this structure better fits the nature of probationary and trial period appeals. The MSPB process can involve administrative-judge proceedings, discovery, hearings, petitions for review to the full Board, possible reopening or remand, and subsequent judicial review. By contrast, the final rule provides a single, record- focused OPM process that requires the agency to produce the complete record, gives the appellant an opportunity to respond, permits targeted fact development where needed, and provides reconsideration and final agency supervision before finality. This approach reduces delay, cost, and uncertainty while preserving administrative review of whether the agency complied with the limited legal and regulatory requirements governing probationary and trial period terminations.

OPM also disagrees that it must prove MSPB “failed” before deciding against reinstituting MSPB as the forum for limited probationary appeals. An agency may revise a regulatory process when it reasonably concludes that a different process better implements the governing law and policy. Here, OPM is implementing Civil Service Rule XI, exercising its authority to prescribe the circumstances and procedures for probationary and trial period appeals, and aligning the appeal forum with OPM's responsibility for administering the civil service rules governing probationary and trial periods. The final rule therefore rests on OPM's independent policy judgment about the appropriate forum and procedures for these appeals, not solely on MSPB's prior quorum issues.

MSPB's prior lack of a quorum and associated backlog are nevertheless relevant practical considerations. They illustrate the risks of routing narrow regulatory appeals through a multi-layered adjudicatory system that may be affected by Board vacancies and backlogs. The MSPB's periodic losses of a quorum have significantly delayed its ability to adjudicate cases. But the rule would be justified even if OPM had guarantees that the MSPB would retain a quorum in perpetuity going forward. The central problem is not merely delay caused by a lack of quorum; it is the mismatch between the limited scope of probationary appeal rights and the more elaborate procedures associated with MSPB adjudication. OPM concludes that a written-record process, with targeted fact development and hearings only where necessary and efficient, is better suited to resolving these narrow claims.

OPM further disagrees with commenters who suggest that MSPB funding, faster confirmations, or internal MSPB case-management reforms are adequate substitutes for this rule. Increasing MSPB funding and changing the speed of Senate confirmations are outside OPM's regulatory authority. OPM also cannot simply retain MSPB as the venue while directing MSPB to use OPM's preferred procedures. The courts have already held that OPM cannot do this. When appeals are assigned to MSPB, MSPB generally controls its own adjudicatory procedures. Thus, a rule directing MSPB to adjudicate these cases differently would raise separate legal concerns and would not accomplish OPM's objective of establishing an OPM-administered process under Civil Service Rule XI.

The final rule provides concrete benefits. It clarifies the appeal route for covered probationary and trial period employees; separates OPM appeals from claims that belong in other forums, such as EEOC discrimination claims; establishes--where the current status quo affords no appeal at all--the limited substantive appeal grounds historically available to covered probationary employees; reduces unnecessary procedural complexity; and supports timely resolution of appeals involving employees whose appointments have not yet been finalized. The rule also provides a process more proportionate to the narrow issues at stake: partisan-political reasons, marital status, and specified procedural claims involving terminations based in whole or in part on pre-appointment reasons.

OPM also expects the rule to produce administrative efficiencies, including faster disposition of narrow regulatory appeals, clearer claim routing, reduced duplication between MSPB and EEOC processes, more consistent administration of Civil Service Rule XI, and a process that better supports agency use of probationary and trial periods as meaningful final stages of the examining process.

OPM does not agree that moving these appeals to OPM will create inconsistency across agencies or components. Under the final rule, the employing agency will make the underlying personnel decision, but OPM will adjudicate the limited appealable issues under a single governmentwide regulation. Centralizing these appeals within OPM is more likely to promote consistency than leaving agencies to develop different practices for issues arising under Civil Service Rule XI. OPM has also committed to issue written decisions and to make final merits decisions publicly available, subject to applicable limits protecting privacy, privileged information, protected personal information, law- enforcement-sensitive information, and other information that may not lawfully be disclosed. Public availability of final merits decisions will promote consistent interpretation of part 751, provide guidance to agencies and employees, and allow the public to evaluate how OPM applies the rule over time.

The final rule also includes safeguards to address concerns about record integrity and fairness. Agencies must submit a response and all documents in the agency record supporting the action. Appellants may reply. OPM may require additional information, audit or investigate the agency's action when doing so is necessary to determine a material fact, and conduct a hearing where the written record is insufficient or where credibility issues make a hearing necessary and efficient. OPM will issue written decisions and provide reconsideration and Director review before finality. For appeals filed by OPM employees, the final rule provides an additional safeguard by assigning the matter to an administrative law judge. These procedures provide a record-based, reviewable administrative process tailored to the limited rights at issue.

Commenters 0443, 0507, and 0588 claimed that OPM is not more efficient than the current system, citing delays in OPM's retirement appeals branch and arguing that MSPB's quorum issue is an insufficient basis for the rule because appeals can continue to be processed during a lack of quorum. Commenters 0421, 0448, and 0610 suggested that the appropriate solution to MSPB's quorum or efficiency issues is faster Senate confirmation and more funding, rather than a change in venue. Commenter 0421 further stated that the current

system already heavily favors agencies, noting that 94.7 percent of appeals were dismissed in FY 2024 and arguing that OPM has not cited instances of MSPB wrongly overturning agency decisions.

OPM disagrees. OPM's retirement-related processes are governed by different statutes, involve different claims, and do not show that MSAC cannot adjudicate this narrow class of probationary and trial period appeals. The final rule establishes a streamlined process specifically designed for these cases. It uses electronic filing, defined deadlines, required agency records, appellant replies, targeted record development, and hearings only when necessary and efficient. OPM has assessed the expected caseload and resource needs and has determined that MSAC and OPM adjudicatory staff can administer the process efficiently. OPM will monitor implementation and may adjust staffing, case-management practices, and guidance as appropriate.

OPM also does not need to show that MSPB wrongly overturned agency decisions in order to provide a different forum when reestablishing probationary appeals. The question is not whether MSPB reached incorrect results in particular cases. The question is whether the existing forum and procedures remain the best fit for a narrow regulatory appeal right after E.O. 14284 and Civil Service Rule XI. Commenter 0421's assertion that a high percentage of probationary appeals are dismissed does not undermine the rule. To the contrary, a high dismissal rate may indicate that many appeals turn on threshold jurisdictional, timeliness, or appealability issues that can be resolved efficiently through a more tailored written-record process. OPM concludes that such cases do not require the full procedural structure used for broader statutory adverse-action appeals.

Commenters 0351, 0352, 0399, 0400, and 0593 claimed that the current system is working well, that only the most qualified individuals are selected for government employment through rigorous evaluation, and that supervisors already have discretion to ensure successful performance. Commenter 0366 asserted that the government should adopt shorter probationary periods, while Commenter 0506 stated that it is already too easy to fire probationary employees.

OPM does not adopt those views. The final rule is not an assessment of the qualifications or performance of the Federal workforce as a whole. Nor does the rule rest on a premise that most Federal employees are unsuitable. The rule addresses a more specific issue: the procedures and forum for resolving limited appeals by employees whose appointments have not yet been finalized. A probationary or trial period is part of the examining and assessment process. During that period, the agency must be able to determine whether continued employment advances the public interest and the efficiency of the service. OPM concludes that a limited and streamlined appeal process is consistent with that function.

Commenter 0399 claimed that the proposed rule contains no demonstrated nexus between its guidance and improved performance or accountability. Commenters 0432 and 0585 stated that the rule will increase waste and inefficiency. Commenter 0567 suggested that the rule solves a problem that does not exist and that OPM has ulterior motives. Commenter 0586 maintained that the costs of probationary appeals are a small price to pay for confidence in the system's legitimacy. Commenter 0601 argued that there is no economic sense in separating probationary employees because the government has already incurred the costs of hiring and onboarding them.

OPM disagrees. The nexus between the rule and accountability is straightforward. The probationary and trial period is intended to allow agencies to assess whether an individual should receive a finalized appointment to the Federal service. A lengthy or procedurally disproportionate appeal system can discourage full use of that assessment period and can impose unnecessary costs when the appealable issues are narrow. By creating a focused OPM process, the final rule supports more timely resolution of the limited claims that remain appealable while preserving appropriate protections against unlawful actions.

OPM also rejects the suggestion that prior government investment in an employee should dictate finalization of the appointment. Hiring, onboarding, and training costs are important, but they are not dispositive. Those costs do not establish that continued employment advances the public interest, the agency's organizational goals, or the efficiency of the service. Indeed, treating sunk costs as a reason to retain an employee who has not demonstrated suitability for finalized appointment would undermine the purpose of the probationary and trial period system. The public interest is served by allowing agencies to make a timely and meaningful determination before an appointment becomes final.

Nor does OPM agree that confidence in the system requires reestablishing the prior MSPB forum and procedures. Confidence is promoted by lawful authority, clear rules, consistent adjudication, a defined record, reasoned written decisions, public availability of final merits decisions, and preservation of independent remedies where Congress or another lawful authority has provided them. The final rule provides those features while avoiding procedures that OPM has determined are not necessary for the limited regulatory appeal rights at issue.

Commenter 0584 stated that OPM should release data on the number of appeals filed since agencies undertook termination actions after January 20, 2025, to provide transparency about the impact of the proposed changes. OPM declines to delay or alter the rule on that basis. This final rule is prospective. It governs covered appeals from terminations effected on or after the effective date of the rule, and it does not reopen, extinguish, or determine the outcome of prior personnel actions, pending appeals, or pending litigation. Data concerning agency actions taken before the effective date would not change the legal authority for this rule or the policy judgment that future covered appeals should be adjudicated under part 751.

OPM has provided the information necessary to support this rulemaking, including the legal basis for the rule, the historical and policy reasons for preserving a limited probationary appeal process, the reasons for moving the forum to OPM, the expected case volume and resource assumptions, and the safeguards included in the final rule. OPM also has committed to public availability of final merits decisions under part 751, subject to applicable legal limits. That commitment will provide ongoing transparency into how OPM applies the rule in future cases.

For these reasons, OPM declines to reestablish MSPB as the adjudicatory forum or to withdraw the rule based on commenters' objections concerning need, benefits, efficiency, or transparency. OPM concludes that the final rule is a lawful and appropriately tailored means of implementing Civil Service Rule XI, preserving the limited substantive appeal rights historically available to covered probationary employees, and establishing a more efficient administrative process for resolving those claims.

An alternative to this rulemaking is a rule that would mirror the appeal rights and procedures under subpart H of part 315 including allowing employees to file appeals with the MSPB. As explained, reinstituting employee appeals to the MSPB would not be as

efficient as having OPM adjudicate appeals. OPM does not believe that returning appeals of probationary actions to MSPB is the best alternative for agencies or employees.

OPM also considered whether to include an agency's failure to provide written notice required under 5 CFR 11.5(e) as a basis for appeal. OPM stated in the proposed rule that it believed that including this ground for appeal would be unnecessary for two reasons. First, employees serving a probationary or trial period understand that, as a condition of employment, their employment will terminate before the end of their tour of duty on the last day of their appointment unless the agency issues the certification required under 5 CFR 11.5. Second, an agency's failure to adhere to a purely administrative requirement would not affect the outcome of the employee's separation.

Commenter 0341 challenged this reasoning and urged OPM to add an appeal right for an agency's failure to provide written notice under Sec. 11.5(e). OPM also independently considered whether to expand the appeal right for probationary employees under this rule to cover the agency's failure to hold a meeting with the employee as described in section 5(b) of E.O. 14284 and incorporated into Sec. 11.5 by this final rule. After extensive consideration, OPM declines to make those alleged procedural defects independent grounds for appeal under part 751.

OPM emphasizes that agencies must comply with Civil Service Rule XI, E.O. 14284, and the regulations in part 11. The final rule incorporates additional Rule XI procedures into Sec. 11.5 to provide greater clarity and administrative convenience for agencies, employees, supervisors, and human resources practitioners. OPM's decision not to make every Rule XI procedural requirement independently appealable does not make those requirements optional. Rather, OPM concludes that noncompliance with those requirements is better addressed through management oversight, OPM accountability reviews, corrective guidance, agency-level compliance mechanisms, and, where applicable, the administrative-error petition process in Sec. 11.5.

The written notice requirement in Sec. 11.5(e), redesignated in this final rule as Sec. 11.5(i), requires an agency to notify the employee in writing of the effective date of the action before terminating the service of an employee serving a probationary or trial period. That notice requirement serves an important administrative function. It informs the employee of when the separation will occur and provides clarity for personnel, payroll, benefits, and recordkeeping purposes. But it does not create a substantive standard for determining whether the employee's appointment should be finalized, nor does it provide a right to advance notice of charges, an opportunity to respond, or a hearing before termination.

For that reason, OPM concludes that a failure to provide written notice of the effective date should not be an independent basis for reinstatement or reversal of a termination. The omission of such notice does not establish that the agency's decision was based on partisan political reasons or marital status, and it does not establish that the agency failed to follow the separate procedures applicable when a termination is based in whole or in part on conditions arising before appointment. Nor would the absence of written notice, standing alone, change the substantive public-interest determination required by Civil Service Rule 11.5. OPM may, however, consider the absence or timing of written notice where relevant to a procedural matter properly before OPM, including whether an appeal was timely filed or whether good cause exists for an untimely filing.

OPM also declines to make the meeting described in section 5(b) of E.O. 14284 an independent ground for appeal. That meeting is part of the agency's internal assessment and certification process near the end of an initial probationary or trial period. It is designed to help agency officials evaluate the employee's performance and conduct, the needs and interests of the agency, and whether continued employment would advance the public interest, the organizational goals of the agency or the Federal Government, and the efficiency of the service. It is not an adversarial pre-termination hearing and does not transform a probationary or trial period termination into an adverse action subject to the procedures applicable to tenured employees.

Treating the meeting requirement as an independent appeal right would substantially alter the function of the probationary and trial period system. It would require OPM to adjudicate collateral disputes over the scheduling, timing, content, and adequacy of meetings, even where the employee does not allege partisan-political discrimination, marital-status discrimination, or failure to follow procedures for a termination based on pre-appointment reasons. That result would recreate the type of procedural litigation E.O. 14284 sought to avoid and would undermine the streamlined appellate framework established in part 751.

OPM also notes that section 7(c) of E.O. 14284 provides that the order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its agencies, officers, employees, or any other person. OPM therefore does not construe the meeting requirement or the written- notice requirement as independently enforceable appeal rights unless OPM expressly provides such a right by regulation. OPM has chosen not to do so here.

Another alternative to this rulemaking is to not issue a rule that provides covered employees with a right to appeal. However, employees terminated during their probationary or trial periods would not be able to seek relief for discrimination based on partisan political reasons or marital status. Supervisors and managers reassigned to nonsupervisory or nonmanagerial positions would still be allowed to appeal to the MSPB under subpart I of part 315, which OPM views as suboptimal given the efficiency gains from having OPM adjudicate these appeals under its own authority.

OPM considered whether an agency's decision not to certify continuation of an appointment, or failure to certify and finalize an appointment, should be independently appealable beyond the grounds specified in Sec. 751.101(c); as reflected in Sec. 751.101(d), OPM declines to make it so. OPM views an agency's inaction or decision not to finalize an employee's appointment beyond the probationary or trial period as the natural conclusion of the appointment akin to the expiration of a term employee's appointment.\50\ Under OPM regulations, the Board similarly views an agency's inaction to renew or extend a term employee's appointment beyond the initial term as not an appealable adverse action.\51\

\50\ In the event an agency fails to make the required certification due to administrative error, the agency head can petition the Director of OPM to reinstate an employee. OPM Memorandum to Heads and Acting Heads of Departments and Agencies, “Initial Guidance on President Trump's Executive Order Strengthening Probationary Periods in the Federal Service” (Apr. 28, 2025).

\51\ 5 CFR 752.401(b)(11); Scott v. Dep't of the Air Force, 113 MSPR 434, ] 9 (2010).

OPM also concludes that granting employees a right to appeal the OPM Director's decision to deny an agency's petition to reinstate an employee to the Federal service under 5 CFR 11.5(j) is inappropriate. Consistent with OPM's view that the employee's appointment naturally comes to an end as described

in 5 CFR 11.5(a), the agency, and not the employee, retains the right to seek the OPM Director's approval to reinstate the employee. It would be inconsistent with E.O. 14284 and 5 CFR 11.5 to establish a right to challenge the OPM Director's decision to deny a petition from the agency given the nature of the employee's appointment and the lack of standing of the employee.

Commenter 0516 argued that OPM failed to consider obvious and less restrictive alternatives, including increasing MSPB funding, streamlining procedures within MSPB, improving supervisor training and guidance, and using enhanced case-management tools to improve timeliness. Commenters 0488 and 0500 likewise asserted that OPM has not provided sufficient data showing that the rule will produce cost savings and has failed to consider less disruptive alternatives.

OPM disagrees. OPM has considered these alternatives, but concludes that they either are outside OPM's authority, would not accomplish the objectives of this rule, or are complementary measures rather than substitutes for the final rule. The purpose of this rule is not merely to reduce the number of days needed to process a case. It is to implement E.O. 14284 and Civil Service Rule XI; to prescribe the circumstances and procedures for limited probationary and trial period appeals; to align the adjudicatory forum with OPM's responsibility for administering the civil service rules governing probationary and trial periods; and to establish a process proportionate to the narrow regulatory issues that may be appealed.

Increasing MSPB funding, accelerating Board-member confirmations, or otherwise addressing MSPB quorum and staffing issues are not remedies OPM can adopt by regulation. MSPB appropriations are a matter for Congress, and MSPB membership depends on nomination and confirmation processes outside this rulemaking. Nor may OPM simply direct MSPB to use different procedures for cases that remain before MSPB. When OPM chooses to route appeals to MSPB, it must take MSPB's statutory adjudicatory structure as it exists; OPM may not superimpose its preferred procedures on MSPB adjudications. For that reason, retaining MSPB as the venue while attempting to streamline MSPB procedure is not a viable regulatory alternative for OPM.

OPM also considered whether improved supervisor training and guidance could address the concerns underlying the rule. OPM agrees that training and guidance are important, and OPM expects to continue supporting agencies in using probationary and trial periods effectively. But training addresses front-end management practices; it does not address the separate question of what forum and procedures should govern appeals after a covered action has occurred. Even with better training, agencies will continue to take probationary and trial period actions, and covered employees will continue to need a clear process for raising the limited appealable claims preserved by this rule. Training therefore complements the final rule, but it is not a substitute for establishing the adjudicatory framework required after E.O. 14284 and Civil Service Rule XI.

OPM likewise considered whether enhanced case-management tools alone would be sufficient. The final rule incorporates several case- management features, including electronic filing, defined filing deadlines, required agency responses, required production of the agency record, appellant replies, OPM authority to require additional information, audits or investigations where necessary to determine a material fact, and hearings where the written record is insufficient or credibility issues make a hearing necessary and efficient. But case- management tools would not, by themselves, resolve the mismatch between the limited regulatory nature of probationary appeals and the more elaborate MSPB procedures developed for broader statutory adverse- action appeals. OPM has therefore adopted case-management tools as part of the final rule, but declines to rely on case-management changes alone.

OPM also disagrees that the rule lacks support because commenters would prefer additional or different cost data. OPM's regulatory analysis identifies the expected case volume, resource assumptions, and costs associated with adjudicating these appeals at OPM, and compares that process to the more resource-intensive adjudication previously available through MSPB. In any event, the rule does not rest solely on monetized cost savings. OPM also relies on non-monetized benefits, including faster resolution of narrow regulatory appeals, greater consistency in administration of Civil Service Rule XI, clearer routing of claims between OPM and other forums, reduced duplication, and a process better tailored to the limited issues available to covered probationary appellants.

OPM further notes that the final rule is not the most disruptive possible alternative. OPM is not eliminating all appeal rights for probationary supervisors covered by subpart I. The final rule preserves their appeals alleging partisan-political reasons, marital status, and specified procedural defects where a termination is based in whole or in part on conditions arising before appointment, while also establishing such appeals for nonsupervisory employees in their probationary period. It also preserves independent remedies before EEOC, OSC, MSPB, Inspectors General, or other forums where an independent legal basis for jurisdiction exists. And OPM has included procedural safeguards, including a written record, agency record- production requirements, appellant replies, reconsideration, Director review before finality, public availability of final merits decisions subject to applicable legal limits, and assignment of an administrative law judge for appeals filed by OPM employees.

Accordingly, OPM declines to adopt the alternatives proposed by Commenter 0516 and Commenters 0488 and 0500. Those alternatives either fall outside OPM's authority, do not address the adjudicatory structure governed by this rule, or are already reflected in part in the final rule's streamlined case-management procedures. OPM concludes that the final rule is a reasonable and appropriately tailored means of implementing Civil Service Rule XI while preserving the limited substantive appeal rights historically available to covered probationary employees.

The final rule promotes greater accountability while making efficient use of taxpayer resources. Although establishing an appeals process where none currently exists necessarily imposes some cost, streamlining appeals by reducing unnecessary legal processes to adjudicate a narrow set of appealable issues and locating adjudicative responsibilities at OPM holds those costs well below what reinstituting the prior MSPB-style process would have entailed. Employees alleging discrimination will continue, as under the current baseline, to file complaints with the EEOC, and the adjudication of those claims at the EEOC may result in better outcomes as the EEOC administers and oversees nearly all anti-discrimination laws protecting Federal employees. Employees seeking relief before the EEOC may also experience longer times to receive a decision given the number of charges pending at the

end of Fiscal Year 2024.\52\ However, employees will gain the ability to bypass delays in the processing of their complaints by filing a lawsuit in Federal district court under certain circumstances.\53\

\52\ Equal Employment Opportunity Commission, Fiscal Year 2024 Annual Performance Report (Jan. 17, 2025), available at https://www.eeoc.gov/sites/default/files/2025-01/24-126_EEOC_2024_APR_508_1.16.25_508.pdf.

\53\ 29 CFR 1614.407.

Several commenters, such as 0434, 0475, 0527, and 0586, bring up the perceived unfairness this rule creates for Federal employees. They maintain that employees will have fewer tools to fight their terminations and the process will be more confusing, which could lead to employees filing in the wrong place and losing based on time considerations.

OPM notes that this rule creates an appeals process for probationary employees that does not currently exist. The rule thus gives employees tools they would not otherwise possess to fight, e.g., unlawful politically-motivated terminations. OPM further notes that, while the process for filing appeals and who will hear those appeals may differ from the prior subpart H, the appeal structure remains relatively the same. Furthermore, OPM will provide guidance to managers, supervisors, and employees concerning these changes in order to avoid the types of concerns voiced by commenters.

Several commenters expressed concern that the rule could be used to permit agencies to separate probationary employees for reasons related to lack of funding, lack of work, abolishment of positions, or reorganization, while avoiding the statutory and regulatory requirements governing reductions in force.

The rule does not authorize agencies to use probationary status to evade reduction-in-force requirements. Reductions in force are governed by 5 U.S.C. chapter 35 and 5 CFR part 351, including the rules governing when those procedures apply. Nothing in this rule alters those authorities, expands an agency's ability to separate employees for reasons that constitute a reduction in force, or permits an agency to characterize a reduction-in-force action as a probationary separation in order to avoid applicable statutory or regulatory requirements.

Rather, this rule addresses the scope and processing of appeals from probationary separations. Agencies remain responsible for determining and applying the correct legal authority for any separation action, and the availability or limits of appeal rights under this rule do not change the substantive requirements applicable to reductions in force.