Streamlining Probationary and Trial Period Appeals

This final rule affects how a Federal employee may pursue an administrative appeal from a covered probationary or trial period action, 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, or failure to certify and finalize an appointment. The final rule grants OPM authority to adjudicate these appeals and removes MSPB authority to adjudicate discrimination claims that previously could attach to certain probationary appeals. Employees may continue to pursue discrimination claims through the Federal-sector EEO process.

The appropriate baseline for this analysis is the current status quo: following E.O. 14284 and the rescission of subpart H of part 315, no administrative appeals process exists for covered probationary and trial period terminations. Measured against that no-appeals baseline, the final rule imposes the new adjudication and agency-defense costs of the OPM appeal process it establishes. For the reasons explained below, OPM estimates that the final rule will result in recurring annual costs of approximately $1.5 million, and first-year costs of approximately $2.75 million, including one-time implementation costs. Because discrimination claims are already pursued through the Federal-sector EEO process under the current baseline, EEO-processing costs are not incremental costs of this rule. 1. Changes From the Proposed Analysis

OPM has updated the final cost analysis in several respects.

First, OPM updated labor rates from 2025 to 2026 rates because the final rule will take effect after publication of the proposed rule. The proposed rule used 2025 Washington, DC locality pay rates; this final analysis uses 2026 rates.

Second, OPM revised the annual appeal-volume baseline. The proposed rule cited 622 covered appeals in FY 2024 but calculated the annual baseline using only FY 2021 through FY 2023 data, resulting in an estimate of 457 appeals annually. In the final analysis, OPM includes FY 2024 in the baseline because those appeals occurred before the post- January 20, 2025 period that OPM treats as anomalous. OPM therefore averages FY 2021 through FY 2024 appeal volumes: 486, 424, 461, and 622 appeals, respectively. This produces an annual baseline of approximately 498 covered appeals. This assumption is more conservative than the proposed rule's 457-appeal baseline and better reflects the full scope of covered appeals identified in the proposed rule.

Third, OPM clarifies that the 498-appeal baseline is used as a proxy for all covered actions under part 751. Historical MSPB data are primarily organized around probationary termination appeals and supervisory or managerial probationary-period appeals. Because certification and finalization procedures under Civil Service Rule XI are newly implemented, OPM does not yet have a separate historical dataset for certification-related appeals. OPM expects those appeals generally to arise from the same population of probationary or trial period employees and to substitute for, rather than materially add to, historical probationary termination appeal volumes.

Fourth, OPM corrected and clarified several component calculations. The proposed rule's OPM adjudication discussion stated that each appeal would require 30 hours of adjudicator time, while the proposed per-case cost and annual estimate were consistent with 3 hours of adjudicator time. In the final analysis, OPM uses 3 hours of adjudicator time, which reflects the intended assumption and is consistent with the proposed rule's explanation that most probationary appeals require limited processing time because many are resolved on jurisdictional grounds.

Fifth, OPM uses the same appeal-review rate for comparable MSPB and OPM review stages. The proposed rule used an 11 percent MSPB petition- for-review rate but applied that rate inconsistently. The final analysis applies 11 percent to the revised 498-appeal baseline, resulting in approximately 55 petitions for review or requests for reconsideration annually.

Sixth, OPM has corrected the baseline used in the analysis. The proposed rule implicitly measured costs and savings against the prior MSPB process. That process, however, was rendered inoperative by E.O. 14284 before this rulemaking, and the correct baseline is the current status quo, under which no administrative appeals process exists for covered terminations. Measured against that baseline, the rule imposes the costs of the new OPM adjudication process it establishes. The prior MSPB process is discussed below for comparison purposes only, and EEO- processing costs are not attributed to this rule because discrimination claims are

already routed through the Federal-sector EEO process under the baseline. 2. One-Time Implementation Costs

OPM estimates that this rulemaking will require individuals employed by more than 80 Federal agencies, including MSPB and EEOC, to review the final rule, modify regulations, policies, and procedures, and train human resources practitioners, hiring managers, attorneys, adjudicators, and other relevant personnel.

For purposes of this cost analysis, OPM assumes that Federal employees performing this work will have an average salary equivalent to GS-14, step 5, on the 2026 Washington, DC locality pay table, with an hourly locality rate of $78.15. OPM assumes that the total dollar value of labor, including wages, benefits, and overhead, equals 200 percent of the wage rate, resulting in a loaded hourly labor cost of $156.30.

OPM estimates that implementation will require an average of 100 hours per affected agency. This results in one-time implementation costs of approximately $15,630 per agency, or approximately $1.25 million governmentwide, assuming 80 affected agencies. 3. Recurring Costs and Savings

OPM estimates that approximately 498 covered appeals will be filed annually. This estimate is based on MSPB appeal volumes for FY 2021 through FY 2024, including 486 appeals in FY 2021, 424 appeals in FY 2022, 461 appeals in FY 2023, and 622 appeals in FY 2024.

OPM does not include post-January 20, 2025 appeal volumes in the recurring annual baseline. OPM continues to view that period as anomalous and not sufficiently predictive of recurring annual appeal volumes. At the same time, including FY 2024 in the final baseline makes the estimate more conservative than the proposed rule's estimate and avoids understating annual appeal volume. 4. EEO-Related Costs

Under both the current baseline and the final rule, discrimination claims by covered probationary and trial period employees are pursued through the appropriate Federal-sector EEO process. E.O. 14284 eliminated the prior MSPB probationary appeal--and with it the ability to attach discrimination claims to such an appeal--before this rulemaking; this rule does not change how discrimination claims are routed. Accordingly, EEO-processing costs are not incremental costs of this final rule. For transparency, OPM notes that the proposed rule estimated total annual EEO-related processing costs of approximately $3.0 million; to the extent such costs are incurred, they arise under the baseline and would be incurred whether or not OPM finalized this rule.\54\

\54\ OPM used Federal Workforce Data (FWD) information to estimate grade levels of MSPB and EEOC personnel assigned to adjudicate appeals covered by this rule.

Accordingly, OPM does not attribute EEO-processing costs to this final rule. Any such costs arise under the current baseline--in which discrimination claims are already pursued through the Federal-sector EEO process--and would be identical whether or not OPM finalized this rule.

Commenters argued that routing discrimination claims through the EEO process may increase Federal court litigation. As an initial matter, any change in the routing of discrimination claims resulted from E.O. 14284 and the rescission of subpart H, not from this rule. OPM does not quantify Federal court litigation costs because such costs depend on future claimant choices, agency decisions, case outcomes, exhaustion of administrative remedies, settlement behavior, and judicial proceedings. OPM also notes that some judicial-review costs may already exist under the baseline for discrimination claims attached to MSPB mixed cases. OPM therefore does not have a reliable basis to estimate incremental Federal court costs attributable to this final rule. 5. Comparison: Adjudication Costs Under the Prior MSPB Process

Although the prior MSPB process is not the baseline for this analysis, OPM provides the following estimates for comparison purposes, to illustrate the relative cost of the process this rule establishes. OPM estimates that under the prior MSPB process, each initial appeal would have required 3 hours of MSPB administrative judge time at the GS-15, step 5 level, 1 hour of GS-11, step 5 paralegal time, and 0.25 hours of chief administrative judge review at the GS-15, step 5 level. Using loaded hourly labor costs of $183.85 for GS-15 time and $92.81 for GS-11 time, OPM estimates an MSPB initial-adjudication cost of approximately $690 per appeal. For 498 appeals annually, this results in annual MSPB initial-adjudication costs of approximately $344,000.

OPM estimates that petitions for review would be filed in approximately 11 percent of appeals, or approximately 55 petitions annually. OPM assumes that each petition for review would require 1 hour each from the MSPB Chairman and one Board Member,\55\ 2 hours from one GS-15, step 5 attorney, and 6 hours from one GS-13, step 5 attorney. Using loaded hourly labor costs of $188.98 for each Board official, $183.85 for the GS-15 attorney, and $132.27 for the GS-13 attorney, OPM estimates a cost of approximately $1,539 per petition, or approximately $85,000 annually.

\55\ Based on the past decade and the current outlook, MSPB is unlikely to have three concurrently sitting Board members for the foreseeable future. Therefore, OPM has estimated the work of only two Board members and staff.

OPM also estimates agency defense costs under the prior MSPB process. OPM assumes each initial appeal required 15 hours of GS-14, step 5 agency attorney time, 4 hours of GS-11, step 5 paralegal time, and 1 hour of GS-15, step 5 supervisory attorney time. OPM further assumes each petition for review required 10 hours of GS-14, step 5 agency attorney time. Using loaded hourly labor costs of $156.30, $92.81, and $183.85, respectively, OPM estimates total annual agency defense costs under the prior MSPB process of approximately $1.53 million.

Accordingly, OPM estimates total annual costs under the prior MSPB process of approximately $2.0 million, consisting of MSPB initial adjudication, MSPB Board-level review, and agency defense costs. These figures are presented for comparison purposes only; because the prior MSPB process is no longer in effect, they are not baseline costs avoided by this rule. 6. OPM Adjudication Costs Under the Final Rule

OPM estimates that each appeal adjudicated by OPM will require 3 hours of GS-13, step 5 adjudicator time, 1 hour of GS-11, step 5 paralegal time, and 1 hour of GS-14, step 5 supervisory adjudicator time. Using loaded hourly labor costs of $132.27, $92.81, and $156.30, respectively, OPM estimates a cost of approximately $646 per appeal. For 498 appeals annually, OPM estimates annual initial OPM adjudication costs of approximately $322,000.

OPM estimates that approximately 55 requests for reconsideration will be filed annually. OPM assumes each request will require 4 hours of GS-14, step 5 adjudications officer time and 1 hour of senior executive review. Using loaded hourly labor costs of $156.30 and $218.50, respectively, OPM estimates reconsideration costs of approximately $844 per request, or approximately $46,000 annually.

OPM also estimates the incremental cost of Director review under Sec. 751.108.

OPM expects that only a small number of cases, approximately 10 annually, will be reviewed by the Director before finality. For purposes of this analysis, OPM assumes that each Director review will require 1 hour of senior executive review and 1 hour of GS-14, step 5 adjudicatory support to prepare the record and decision materials. Using loaded hourly labor costs of $218.50 and $156.30, respectively, OPM estimates an incremental Director-review cost of approximately $375 per case, or approximately $4,000 annually.

OPM also estimates agency defense costs under the OPM process. OPM assumes each initial appeal will require 10 hours of GS-14, step 5 agency attorney time, 4 hours of GS-11, step 5 paralegal time, and 1 hour of GS-15, step 5 supervisory attorney time. OPM further assumes each request for reconsideration will require 8 hours of GS-14, step 5 agency attorney time. Using loaded hourly labor costs of $156.30, $92.81, and $183.85, respectively, OPM estimates total annual agency defense costs under the OPM process of approximately $1.12 million.

Accordingly, OPM estimates total annual costs under the OPM adjudication process of approximately $1.5 million, consisting of OPM initial adjudication, OPM reconsideration, Director review, and agency defense costs.

Summary of Recurring Annual Costs

Prior MSPB process

Cost category (comparison only) Final OPM process

Initial adjudication............................................... $344,000 $322,000 Petition/reconsideration and Director review....................... 85,000 50,000 Agency defense costs............................................... 1,530,000 1,124,000

Subtotal: adjudication and defense costs....................... 1,959,000 1,496,000 EEO-related costs (not attributable to this rule; see section 4)... ..................... ....................

Total recurring annual cost.................................... 1,959,000 1,496,000

Based on these estimates, and measured against the current no- appeals baseline, OPM estimates recurring annual costs of approximately $1.5 million, consisting of OPM adjudication, reconsideration, Director review, and agency defense costs. In the first year, OPM also estimates one-time implementation costs of approximately $1.25 million, for total first-year costs of approximately $2.75 million. For comparison, the prior MSPB process would have cost approximately $2.0 million annually in adjudication and defense costs; the OPM process established by this rule is thus approximately $463,000 less costly per year than reinstituting an MSPB-style process would have been. 7. Response to Cost-Related Comments

Commenters 0421, 0501, 0503, 0584, 0599, and 0602 argued that moving discrimination claims to the EEO process may increase costs, including potential costs associated with Federal court litigation. As explained above, EEO-processing costs are not incremental costs of this rule: discrimination claims are routed through the Federal-sector EEO process under the current baseline, and this rule does not change that routing. OPM has not quantified Federal court litigation costs because those costs depend on future decisions by employees, agencies, EEOC administrative judges, and courts, and because any change in the routing of discrimination claims resulted from E.O. 14284 rather than from this rule.

OPM also recognizes that the final analysis reaches a different quantified conclusion than the proposed rule. The proposed rule measured the rule against the prior MSPB process and characterized the rule as likely producing net cost savings. The final analysis instead measures the rule against the current no-appeals baseline and estimates recurring annual costs of approximately $1.5 million. OPM concludes that providing covered employees a limited appeal--including for claims of partisan-political or marital-status discrimination--is worth those costs, and that the streamlined OPM process holds those costs well below what an MSPB-style process would have entailed. The final rule provides administrative review of covered probationary and trial period appeals where none currently exists, clarifies claim routing, provides a record-based process tailored to the limited issues appealable under part 751, avoids the higher adjudication and agency-defense costs that reinstituting the prior MSPB process would have entailed, and promotes faster finality for employees and agencies. Several benefits, including reduced uncertainty, clearer procedures, better allocation of adjudicatory resources, and improved agency ability to manage probationary and trial period appointments, are difficult to quantify but are substantial.

OPM further notes that, even if EEO-processing costs were considered, the proposed rule's estimate would have substantially overstated any effect of this rule. That estimate assumed that every appellant would seek EEO counseling, even though not every appellant will allege discrimination, and employees may pursue EEO counseling and complaints under the current baseline regardless of this rule. Because discrimination claims are routed through the Federal-sector EEO process under the baseline in any event, the final analysis does not attribute those costs to this rule.

Accordingly, OPM concludes that the final rule will impose quantified recurring annual costs of approximately $1.5 million, and first-year costs of approximately $2.75 million including implementation costs, while avoiding the higher costs of an MSPB-style process and producing important non-quantified benefits from a streamlined, OPM-administered appeal process.

First, and most fundamentally, the final rule provides covered probationary and trial period employees with a limited administrative appeal--including for claims that a termination was based on partisan political reasons or marital status--where the current baseline affords no appeal at all. By creating a forum to adjudicate allegations of politically motivated or marital-status-based terminations, the rule strengthens the nonpartisan character of the civil service and promotes fairness, while keeping those appeals appropriately cabined to the narrow grounds historically available. In addition, OPM expects the final rule to produce further non-quantified benefits

for employees, agencies, and the Federal Government, including prompt resolution of covered appeals, clearer claim routing, avoidance of unnecessary litigation burden, timely corrective action where warranted, and better use of probationary and trial periods as assessment tools.

Second, the final rule will provide employees with a prompt and clear process for resolution of covered appeals--a process that does not exist at all under the current baseline. A probationary or trial period termination, a reassignment following failure to complete a supervisory or managerial probationary period, a noncertification decision, or a failure to certify and finalize an appointment may have significant professional and financial consequences for the affected individual. Timely adjudication benefits employees by providing prompt clarity as to whether the action will be sustained or corrected. If the agency erred, the final rule allows corrective relief to be ordered-- relief that is not available at all under the current baseline. If the agency action is sustained, the individual receives earlier certainty for purposes of employment planning, benefits decisions, and future career choices.

Third, prompt adjudication benefits the Government by reducing avoidable remedial exposure. Where an agency action is found to be erroneous, delay may increase potential back pay, interest, attorney- fee exposure, and administrative disruption. A more prompt decision limits the period of uncertainty and allows the agency to implement any required corrective action sooner. This benefit serves both affected individuals and agencies by reducing the time between the challenged action and final administrative resolution.

Fourth, the final rule provides review without imposing an unnecessary litigation burden. Had OPM instead reinstituted the prior MSPB process, even appeals involving narrow probationary or trial period issues could have required substantial agency time for litigation preparation, motion practice, discovery disputes, hearing preparation, and related activity. The final rule instead adopts a record-based OPM process tailored to the limited issues that remain appealable. The rule requires the agency to produce the agency record, permits the appellant to respond, and allows OPM to require additional information or conduct further proceedings when necessary and efficient. This approach preserves meaningful review while avoiding routine use of costly procedures in cases that can be resolved on the written record.

Fifth, the final rule promotes clearer and more efficient claim routing. Appeals before OPM under part 751 will be limited to the grounds specified in the rule, including claims involving partisan political reasons or marital status and claims that an agency failed to follow required procedures for terminations based in whole or in part on pre-appointment reasons. Other statutory claims, including discrimination claims within the jurisdiction of the EEOC, remain available in the forums Congress or applicable law has designated. This structure reduces confusion over forum, separates limited probationary appeal issues from collateral statutory claims, and allows specialized forums to adjudicate matters within their respective jurisdiction.

Sixth, the final rule supports more effective use of probationary and trial periods. Congress and the civil service rules have long treated probationary and trial periods as a continuation of the examining and assessment process. These periods allow agencies to determine whether a new employee, supervisor, or manager has demonstrated the performance, conduct, judgment, and suitability necessary for continued Federal service. OPM expects that a focused, streamlined appeal process--rather than one modeled on the prior MSPB procedures--will provide accountability without the litigation-driven hesitation associated with those procedures, and will allow supervisors and managers to devote more time to training, mentoring, observing, and evaluating employees during the period in which those assessments are most important.

Seventh, OPM expects the rule to improve the efficiency of the service. When supervisors are able to make timely, evidence-based decisions during probationary or trial periods, agencies are better positioned to retain employees who meet mission needs and address situations in which continued employment does not advance the efficiency of the service. This benefits the public by helping agencies maintain a capable workforce and by reducing the long-term costs associated with retaining employees whose performance, conduct, or supervisory capacity has not been demonstrated during the probationary or trial period.

Eighth, the final rule provides transparency and accountability appropriate to the limited appeal rights at issue. OPM will issue written decisions, provide reconsideration, allow Director review before finality, and make final merits decisions publicly available subject to privacy, privilege, law-enforcement-sensitive information, and other legal limits. These features will promote consistency, provide guidance to agencies and employees, and permit public understanding of how OPM applies the final rule over time.

OPM recognizes that some of these benefits are difficult to quantify with precision. The absence of precise quantification does not make the benefits less substantial. Faster finality, reduced uncertainty, clearer claim routing, more efficient use of supervisory and human-resources time, and better use of probationary and trial periods are significant operational benefits that support the final rule.

Accordingly, OPM concludes that the final rule will produce benefits beyond the quantified savings reflected in the cost analysis. The rule preserves administrative review of the limited matters appealable under part 751, provides a more focused and timely adjudicatory process, reduces unnecessary litigation burden, allows prompt correction of agency error where warranted, and supports the effective use of probationary and trial periods to promote the efficiency of the Federal service.

This final rule contains information collection requirements within the meaning of the Paperwork Reduction Act of 1995, as amended (44 U.S.C. chapter 35). The final rule establishes procedures for filing and adjudicating appeals before OPM under part 751, including electronic filing, appellant submissions, representative information, requests for e-filing exemptions, agency responses, agency-record submissions, agency certifications, appellant replies, requests for reconsideration, and related case-processing submissions.

The information collected will be used to receive, docket, serve, process, adjudicate, and maintain records of appeals from covered actions under part 751, including terminations during probationary or trial periods, assignments to nonsupervisory or nonmanagerial positions following failure to complete a supervisory or managerial probationary period, noncertification of continuation of an appointment, and failure to certify and finalize an appointment. The final rule requires use of the electronic filing system identified on OPM's website, except where OPM grants an exemption for good cause.

OPM has submitted a request for a new information collection to the Office of Management and Budget for this system (see 91 FR 46802 (July 24, 2026)).

OPM will not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a currently valid OMB control number.

To the extent the final rule requires Federal agencies to submit agency responses, agency records, certifications, or other documents in their official capacity, those submissions are not collections from “persons” for purposes of the Paperwork Reduction Act. However, submissions from appellants, representatives, or other non-agency parties may constitute information collections subject to the Paperwork Reduction Act.

The Director of OPM, Scott Kupor, reviewed and approved this document and has authorized the undersigned to electronically sign and submit this document to the Office of the Federal Register for publication.

Office of Personnel Management. Jerson Matias, Federal Register Liaison.

Accordingly, for the reasons stated in the preamble, OPM amends 5 CFR parts 11, 230, 315, 432, 751 and 752 as follows:

PART 11--PROBATIONARY AND TRIAL PERIODS (RULE XI)

0 1. The authority citation for part 11 continues to read as follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 14284, 90 FR 17729.

Sec. 11.2 [Amended]

0 2. Amend Sec. 11.2, in paragraph (a)(2), by removing the phrase “Reinstatement Priority List” and adding in its place the phrase “Reemployment Priority List”.

0 3. Amend Sec. 11.5 by redesignating paragraphs (e) through (g) as paragraphs (i) through (k) and adding new paragraphs (e) through (h) to read as follows:

Sec. 11.5 Completion of probationary or trial period.

* * * * *

(e) Each agency head shall designate, in writing, one or more agency officials responsible for evaluating the continued

employment of employees serving an initial probationary or trial period in the Federal service. The agency head should limit such designations to officials who can properly assess the needs and interests of the agency, the organizational goals of the agency or the Federal Government, and the efficiency of the service.

(f) At least 60 days before the end of an employee's initial probationary or trial period, an official designated under paragraph (e) of this section shall meet with the employee to discuss the employee's performance and conduct, based in part on input from the employee's supervisor; the needs and interests of the agency; and whether the employee's continued employment would advance the public interest, the organizational goals of the agency or the Federal Government, and the efficiency of the service.

(g) Within 30 days before the end of an employee's initial probationary or trial period, the agency head or an official designated under paragraph (e) of this section shall determine, consistent with this section and other applicable law, whether to finalize the employee's appointment to the Federal service or terminate the employee's service.

(h) Before finalizing an employee's appointment to the Federal service at the conclusion of the probationary or trial period, the agency head or an official designated under paragraph (e) of this section must certify in writing that the employee's continued employment will advance the public interest. * * * * *

PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT

0 4. The authority citation for part 230 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, 3302. E.O. 10577, 3 CFR 1954- 1958 Comp., p. 218; E.O. 14284, 90 FR 17729. Sec. 230.402 also issued under 5 U.S.C. 1104.

0 5. Amend Sec. 230.402 by revising paragraph (f) to read as follows:

Sec. 230.402 Agency authority to make emergency-indefinite appointments in a national emergency.

* * * * *

(f) Probationary period. (1) The first year of service of an emergency-indefinite employee is a probationary period.

(2) The agency may terminate the appointment of an emergency- indefinite employee at any time during the probationary period. The employee is entitled to the procedures set forth in part 751 of this chapter as appropriate. * * * * *

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0 6. The authority citation for part 315 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, and 3302. E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218, unless otherwise noted; E.O. 14284, 90 FR 17729. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued under E.O. 12034, 43 FR 1917, 3 CFR, 1978 Comp., p.111. Sec. 315.606 also issued under E.O. 11219, 30 FR 6381, 3 CFR, 1964-1965 Comp., p. 303. Sec. 315.607 also issued under 22 U.S.C. 2560. Sec. 315.608 also issued under E.O. 12721, 55 FR 31349, 3 CFR, 1990 Comp., p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f). Sec. 315.612 also issued under E.O. 13473, 73 FR 56703, 3 CFR, 2009 Comp., p. 241. Sec. 315.613 also issued under 5 U.S.C. 9602. Sec. 315.710 also issued under E.O. 12596, 52 FR 17537, 3 CFR, 1987 Comp., p. 264.

0 7. Amend Sec. 315.201 by revising paragraph (a) to read as follows:

Sec. 315.201 Service requirement for career tenure.

(a) Service requirement. 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 of this chapter. Except as provided in paragraph (c) of this section, an employee must serve at least 3 years of creditable service as defined in paragraph (b) of this section to become a career employee. * * * * *

Subpart I--Probation on Initial Appointment to a Supervisory or Managerial Position

0 8. Amend Sec. 315.908 by revising paragraph (b) to read as follows:

Sec. 315.908 Appeals.

* * * * *

(b) An employee who alleges that an agency action under this subpart was based on partisan political reasons or marital status may appeal to the Office of Personnel Management using the procedures in 5 CFR part 751.

PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS

0 9. The authority citation for part 432 is revised to read as follows:

Authority: 5 U.S.C. 4303, 4305; E.O. 14284, 90 FR 17729.

0 10. Amend Sec. 432.102 by: 0 a. Revising paragraphs (f)(1), (2), and (3); 0 b. Redesignating paragraphs (f)(4) through (13) as paragraphs (f)(5) through (14); and 0 c. Adding a new paragraph (f)(4).

The revisions and addition read as follows:

Sec. 432.102 Coverage.

* * * * *

(f) * * *

(1) An employee in the competitive service who is serving a probationary period under an initial appointment;

(2) An employee in the competitive service serving in an appointment that requires no probationary period, who has not completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;

(3) A preference eligible employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions;

(4) A nonpreference eligible employee in the excepted service who has not completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment (see 5 CFR 213.104(a)) limited to 2 years or less; * * * * *

0 11. Add part 751 to read as follows:

PART 751--PROBATIONARY AND TRIAL PERIOD APPEALS

Sec. 751.101 Right to appeal. 751.102 Procedures for submitting appeals. 751.103 Form and content of probationary or trial period appeal and agency response. 751.104 Employee representatives. 751.105 Adjudication of appeals. 751.106 Sanctions and protective orders. 751.107 Requests for reconsideration of an initial decision. 751.108 Review by the OPM Director. 751.109 Final decision.

Authority: 5 U.S.C. 1103, 1302, 3301, 3302, 3321, 5596; E.O. 14284, 90 FR 17729; 5 CFR 11.6.

Sec. 751.101 Right to appeal.

(a) Right of appeal. (1) Subject to paragraphs (b) through (d) of this section, an employee may appeal the following actions to the Office of Personnel Management (OPM):

(i) Termination during a probationary or trial period required under 5 CFR part 11 or other authority administered by OPM;

(ii) Assignment to a nonsupervisory or nonmanagerial position for failure to complete a supervisory or managerial probationary period required under subpart I of part 315 of this chapter;

(iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or

(iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period.

(2) An individual serving a probationary or trial period does not have a right to appeal their termination under this part if the individual has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. Such individual may have a right to appeal under the provisions of 5 CFR 432.106 or 752.405, as appropriate, provided that such appeal is not excluded by the provisions of Sec. 432.102(b), (d), or (f), or Sec. 752.401(b) or (d), of this chapter.

(b) Burden of proof. The employee (i.e., appellant) bears the burden to demonstrate, by a preponderance of the evidence:

(1) The timeliness of the written appeal,

(2) That OPM possesses jurisdiction over the appeal, and

(3) The agency's action was discriminatory based on partisan political reasons or marital status or failed to follow the procedures for terminating the employee for reasons based in whole or in part on conditions arising before the employee's appointment.

(c) Appealable issues--(1) Discrimination. An employee may appeal one of the following actions that he or she alleges was based on partisan political reasons or marital status:

(i) Termination not required by statute;

(ii) Assignment to a nonsupervisory or nonmanagerial position under Sec. 315.907 of this chapter;

(iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or

(iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period.

(2) Improper procedure. An employee whose termination is based in whole or in part on conditions arising before his or her appointment may appeal to OPM challenging that the agency failed to provide:

(i) Advance written notice stating the reasons, specifically and in detail, for the proposed action;

(ii) A reasonable time for filing a written answer to the notice of proposed termination and for furnishing affidavits in support of his or her answer. If the employee answers, the agency shall consider the answer in reaching its decision; and

(iii) A written decision at the earliest practicable date delivered at or before the effective date of the action. The decision shall inform the employee of the reasons for the action, the right to appeal to OPM, the need to include documented supporting facts, and time limits within which the appeal must be submitted under this section.

(d) Nonappealable issues. An employee may not appeal under this part any other issue not specified in paragraph (c) of this section.

(e) Exclusive appeal procedure. The procedures in this part are the sole means of appealing a covered action under paragraph (a) of this section, but do not otherwise preclude an employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, an Inspector General, the Merit Systems Protection Board, the Department of Labor Veterans' Employment and Training Service, or Office of Special Counsel. A party cannot obtain judicial review of a decision under this part.

(f) Definition of employee. For purposes of this part, an employee means an individual appointed:

(1) To the competitive service as described in 5 CFR 11.2 who has not completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(2) To the competitive service and serving a probationary period on an initial appointment to a supervisory or managerial position under subpart I of part 315 of this chapter;

(3) To the competitive service under an emergency-indefinite appointment in a national emergency serving a probationary period under subpart D of part 230 of this chapter and who is in the first year of service; or

(4) To the excepted service before the end of their first year on an initial appointment under part 307 of this chapter. Employees serving in an appointment in the excepted service outside of part 307 of this chapter are not covered under this section and, therefore, may not appeal a termination during their trial period unless otherwise entitled by statute.

Sec. 751.102 Procedures for submitting appeals.

(a) Filing an appeal. An employee, or his or her authorized representative, seeking to file an appeal or reconsideration under this part must utilize the electronic filing system identified on OPM's website. Unless a party demonstrates good cause and seeks approval from OPM, OPM will not accept pleadings, evidence, or other documents via electronic mail or postal mail.

(b) Time limits. An employee may file an appeal within 30 calendar days from the effective date of the action. An appeal is deemed timely when it is electronically filed by 11:59 p.m. Eastern Time on the 30th calendar day after the effective date of the action.

(1) In computing the number of days allowed for filing an appeal, the first day counted is the day after the effective date of an agency action. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date.

(2) If an employee does not file an appeal within the time set by this section, the appeal will be dismissed as untimely filed unless the employee demonstrates good cause for an untimely appeal. The determination of good cause will be in the sole and exclusive discretion of OPM.

(c) E-filing procedures. (1) All parties and their representatives to an appeal or reconsideration must register as instructed by OPM on its e-filing website using a unique email address.

(2) Registration as an e-filer constitutes consent to accept electronic service of pleadings, evidence, notices, orders, and other documents filed by other e-filers or issued by OPM. No party may electronically file any document with OPM or access an appeal or reconsideration of an appeal unless registered as an e-filer unless exempted under paragraph (c)(7) of this section for good cause.

(3) All notices, orders, decisions, and other documents issued by OPM, as well as all documents filed by parties, will be made available for viewing and downloading at OPM's electronic filing system. Access to documents is limited to the parties and their representatives who are registered e-filers in the cases in which they were filed.

(4) All parties and their representatives must follow the instructions on OPM's website for

properly filing all pleadings, evidence, and other documents. OPM may strike a document where an e-filer repeatedly fails to follow these instructions following receipt of a show cause order.

(5) Each e-filer must promptly update their profile in OPM's electronic filing system and notify OPM and other parties of any change in their address, telephone number, or email address by filing a pleading in each pending case with which they are associated. E-filers are responsible for monitoring case activity regularly in OPM's electronic filing system to ensure that they have received all case- related documents.

(6) A party or representative may withdraw their registration as an e-filer pursuant to the requirements posted on OPM's website. Withdrawing registration in OPM's electronic filing system means that, effective upon OPM's processing of a proper withdrawal, pleadings, evidence, orders, and other documents filed by a party, a party's representative, or OPM will no longer be served on that person electronically and that person will no longer have electronic access to their case records through OPM's electronic filing system. OPM may still process an appeal or request for reconsideration after a party withdraws as an e-filer. Withdrawal of e-filing registration by a party or representative will not be considered good cause for staying a case.

(7) OPM, in its sole and exclusive discretion, may exempt a party or representative from registering as an e-filer for good cause. A party or representative must promptly contact OPM as instructed on OPM's website to request an exemption from the e-filing requirements in this part. OPM will not find good cause for failing to timely file an appeal or seek reconsideration if the party or representative fails to contact OPM to request an exemption before any deadline to appeal or seek reconsideration.

(8) Documents filed in OPM's electronic filing system are deemed received on the date the electronic submission is timestamped by OPM based on the Eastern Time Zone.

Sec. 751.103 Form and content of probationary or trial period appeal and agency response.

(a) Initial appeal. An employee's appeal shall be in writing and shall state the basis of the employee's appeal; the name, address, and email address or phone number of the appellant and appellant's representative, if any; and any documentation supporting the appellant's appeal.

(b) Agency response. The agency response to an appeal must be filed within 30 calendar days after service of the initial appeal; contain the name of the appellant and of the agency whose action the appellant is appealing; a statement identifying the agency action taken against the appellant and stating the reasons for taking the action; all documents contained in the agency record of the action; designation of and signature by the authorized agency representative; and any other documents or responses requested by the Office. The agency's 30 calendar days to respond begins upon service of the appeal. The agency record of the action shall include, at a minimum:

(1) All documents considered or relied upon by the agency in taking the action;

(2) The notice of action and effective date;

(3) Documents showing the appellant's appointment, service history, and probationary or trial period status;

(4) Any written certification, noncertification, or failure-to- certify record under 5 CFR part 11;

(5) Any documents supporting the agency's basis for the action under appeal; and

(6) A certification that the agency has produced the complete record considered by the deciding official or otherwise relied upon by the agency.

(i) The agency must produce the complete agency record to OPM.

(ii) The agency must serve the appellant with the agency record, except that the agency may redact or withhold information from the copy served on 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.

(c) Reply. An employee may file a reply to an agency response to an initial appeal within 15 calendar days of the date the agency submits its response. The reply may only address the factual and legal issues raised by the agency in response to the initial appeal. The reply may not raise new allegations of error unless the basis rests on information first disclosed in the agency response or unless OPM grants leave for good cause.

(d) Inspection of OPM's appellate record. The employee, an employee's representative, and the agency will be permitted to inspect OPM's appellate record on request, 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.

(e) Service of documents. The employee, employee's representative, and agency will serve on each other copies of any and all information submitted to OPM with respect to an appeal, 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. Such information must be served on all other parties at the same time the information is submitted to OPM and must be accompanied by a certificate of service stating how and when service was made.

(f) Untimely filings. Untimely filings may be accepted upon a party's showing of good cause at the sole and exclusive discretion of OPM.

Sec. 751.104 Employee representatives.

(a) Designation of representative. An appellant may select a representative of his or her choice to assist in the preparation and presentation of an appeal, provided that the appellant submits his or her designation of representative in writing related to the specific appeal.

(b) Federal employee representatives; official time and reimbursement. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function.

(c) Disallowance of representative. OPM or the responsible agency may, in its sole and exclusive discretion, disallow an appellant's choice of 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.

Sec. 751.105 Adjudication of appeals.

(a) Appeals by non-OPM employees. OPM will assign personnel to adjudicate an appeal under this subpart by an employee of an agency other than OPM. OPM personnel assigned to adjudicate an appeal under this part shall be insulated from officials who participated personally and substantially in the challenged personnel action or provided case- specific advice concerning that action. OPM adjudicators shall not consider material ex parte communications

concerning the merits of an appeal. If such a 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. In addition, no OPM employee may be assigned to adjudicate an appeal if the employee has a relationship with the appellant or, during the preceding two years, that person was an employee of the agency that is party to the action to be assigned. When necessary, OPM may assign an administrative law judge to preside over the adjudication of an appeal.

(b) Appeals by OPM employees. OPM will assign an administrative law judge to adjudicate an appeal under this subpart by an OPM employee and to issue an initial decision. To insulate the adjudication of its own employees' appeals from agency involvement, OPM will not disturb initial decisions in those cases unless a party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge, a clear error of law, or a material factual error that affected the outcome of the appeal. For purposes of this paragraph (b), the term harmful procedural irregularity means an irregularity in the application of procedures that was likely to have caused the administrative law judge to reach a conclusion different from the one he or she would have reached in the absence or cure of the irregularity. The assignment of an administrative law judge under this paragraph (b) or under paragraph (a) of this section does not make 5 U.S.C. 554, 556, or 557 applicable to an appeal under this part except to the extent those provisions are independently required by law or expressly incorporated in this part.

(c) Ascertainment of facts. OPM may require either party to provide additional information, and it may audit or investigate an agency's action in the course of adjudicating an appeal if 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. An individual serving as a representative of either party may not participate in an audit or investigation unless OPM specifically requests them to do so. The review of an agency action must be based solely on the developed written record unless OPM determines that a hearing is necessary and efficient in resolving an appeal. For purposes of this section, the phrase necessary and efficient means circumstances in which the written record is insufficiently developed to make a determination regarding one or more facts material to the outcome of the appeal, or where there is a disputed issue of witness credibility that is material to the outcome of the appeal. Where an investigation or audit is conducted, OPM will:

(1) Inform the employee, the employee's representative, and the agency of an investigation or audit; and

(2) Provide the employee, the employee's representative, and the agency with the results of an investigation or audit, and a reasonable opportunity to submit arguments or additional information to support their positions.

(d) Initial decision. OPM will notify the employee, employee's representative, and agency in writing of its decision.

(e) Remedies. (1) If the employee is the prevailing party, OPM will order relief including correction of the personnel action and any back pay, interest, and reasonable attorney fees consistent with subpart H of part 550 of this chapter. The employee as a prevailing party is not entitled to compensatory damages or other relief not authorized under 5 U.S.C. 5596(b).

(2) If the 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 issues an order staying any such relief. No such stay may be ordered that would deprive the employee of pay and benefits while the initial decision is pending reconsideration.

Sec. 751.106 Sanctions and protective orders.

(a) Cease-and-desist directive. OPM may issue a protective order or cease-and-desist directive to protect the integrity of the adjudicatory process, prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information, or misuse of nonpublic information obtained through the appeal. OPM may do this sua sponte, or at the request of a party, preemptively or at any juncture in the appeal process. A party requesting OPM to issue a protective order or cease-and-desist order must file such request in accordance with Sec. 751.102(c), and must include a statement of reasons justifying the request, together with any relevant documentary evidence. Any protective order issued by OPM must be no broader than reasonably necessary and must not restrict lawful communications protected by law.

(b) Failure to comply with an OPM directive. When a party to an appeal fails to comply with an order issued under paragraph (a) of this section, OPM may, except when prohibited by law:

(1) Draw all inferences in opposition to the noncompliant party with regard to the appeal in question;

(2) Prohibit the noncompliant party from introducing evidence, or additional evidence, concerning the appeal, or otherwise relying on the record; or

(3) Eliminate from consideration any appropriate part of the filings or other submissions of the noncompliant party.

(c) Scope of sanctions. Any sanction issued under paragraph (b) of this section must be proportionate, causally related to the violation, and no broader than necessary to protect the adjudicatory process.

Sec. 751.107 Requests for reconsideration of an initial decision.

(a) Upon a timely request from either party to the dispute or upon its own initiative, OPM may, in its sole and exclusive discretion, reopen and reconsider an initial decision issued under this subpart. An employee, the employee's representative, or agency may request reconsideration of an initial decision within 30 calendar days from issuance of the decision. The request for reconsideration must be filed as directed in the initial decision.

(b) Grounds for which OPM may grant a request for reconsideration are:

(1) The initial decision contains erroneous findings of material fact sufficient to warrant an outcome different from that of the initial decision;

(2) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The party must explain how the error affected the outcome of the case;

(3) New and material evidence or legal argument is available that, despite the party's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed; or

(4) OPM finds good cause to reconsider an appeal.

(c) In any case that is reopened or reviewed, OPM may:

(1) Issue a reopened and reconsidered decision (“R&R decision”) that affirms, reverses, modifies, vacates, or otherwise decides the case, in whole or in part;

(2) Require the parties to submit argument and evidence;

(3) Take any other action necessary for final disposition of the case; and

(4) Issue an order with a date for compliance with the R&R decision.

(d) There is no further right of administrative appeal from the R&R decision.

Sec. 751.108 Review by the OPM Director.

The Director may, on the Director's own initiative and before a decision becomes final under Sec. 751.109, reopen and reconsider any initial decision or reopened and reconsidered decision. In determining whether to exercise this authority, the Director may consider, among other things, whether the decision may contain clear legal error; may rest on an erroneous finding of material fact; may involve an issue of exceptional importance, an issue affecting the administration of the civil service laws, rules, regulations, or OPM policy, or a conflict among OPM decisions; or otherwise warrants Director review. This section does not create a right to request Director review. Upon reopening and reconsideration, the Director may take any action described in Sec. 751.107(c).

Sec. 751.109 Final decision.

(a) The 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.

(b) A timely request under Sec. 751.107 suspends finality. If OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes OPM's final decision 30 calendar days after issuance of the denial or dismissal, unless the Director reopens the initial decision under Sec. 751.108 before that time. If OPM grants the request, a reopened and reconsidered decision becomes OPM's final decision 30 calendar days after issuance unless the Director reopens that decision under Sec. 751.108 before that time.

(c) An untimely request under Sec. 751.107 does not suspend or otherwise affect finality. If OPM accepts and grants an untimely request for good cause, any resulting reopened and reconsidered decision becomes final as provided in paragraph (b) of this section.

(d) A decision by the Director pursuant to Sec. 751.108 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 this section.

(e) There is no further right of appeal of a final decision of OPM.

(f) 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 shall maintain a publicly accessible website containing final decisions issued under this part that address a party's claim on the merits. Any final merits decision not made publicly available because of such legal limits shall be made available upon request to the Federal employee or former Federal employee involved in a proceeding under this subpart, his or her representative selected pursuant to Sec. 751.104, or a representative of the Federal agency or office involved in the proceeding who has a need to know.

PART 752--ADVERSE ACTIONS

0 12. The authority citation for part 752 is revised to read as follows:

Authority: 5 U.S.C. 6329b, 7504, 7514, 7515, and 7543; 38 U.S.C. 7403; Sec. 512, Pub. L. 114-328, 130 Stat. 2112; E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218; E.O. 14284, 90 FR 17729.

Subpart B--Regulatory Requirements for Suspension for 14 Days or Less

0 13. Amend Sec. 752.201 by revising paragraphs (b)(1) and (2) to read as follows:

Sec. 752.201 Coverage.

* * * * *

(b) * * *

(1) An employee in the competitive service who has completed a probationary period, or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;

(2) An employee in the competitive service serving in an appointment which requires no probationary period, and who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; * * * * *

Subpart D--Regulatory Requirements for Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less

0 14. Amend Sec. 752.401 by revising paragraphs (c)(1), (c)(2)(i), and (d)(10) and (12) to read as follows:

Sec. 752.401 Coverage.

* * * * *

(c) * * *

(1) A career or career conditional employee in the competitive service who is not serving a probationary period;

(2) * * *

(i) Who is not serving a probationary period under an initial appointment; or * * * * *

(d) * * *

(10) A nonpreference eligible employee serving a trial period under an initial appointment in the excepted service pending conversion to the competitive service, unless he or she meets the requirements of paragraph (c)(5) of this section; * * * * *

(12) An employee in the competitive service serving a probationary period, unless he or she meets the requirements of paragraph (c)(2) of this section.

[FR Doc. 2026-15654 Filed 7-31-26; 8:45 am] BILLING CODE 6325-39-P