On December 30, 2025, the Office of Personnel Management (OPM) issued a proposed rule in the Federal Register. This proposed rule follows the present Administration’s massive changes in federal employees’ probationary periods, as previously analyzed in this blog. The proposed rule seeks to markedly change the former appeals mechanisms for probationary employees from their preexisting form.
Under former regulations previously found at 5 C.F.R. Part 315, Subpart H, probationary employees who believed that they were fired based on discrimination for their partisan political affiliation or marital status could appeal their removals to the Merit Systems Protection Board (MSPB), with the opportunity for possible hearing with pre-hearing discovery before an MSPB administrative judge, and then into the courts. OPM abolished these regulations by final rule without opportunity for public comment effective June 24, 2025. OPM’s final rule left open the issue of whether it would recreate an appeals mechanism, and in what form.
OPM’s new proposed rule opts to permanently strip the MSPB of jurisdiction over this category of probationary appeals for claims of discrimination for their partisan political affiliation or marital status or certain procedural errors in probationary terminations based upon pre-appointment causes. Instead, OPM proposes to directly adjudicate this category of appeals. Instead of being heard by administrative judges in a quasi-judicial format, cases would be adjudicated essentially on written submissions (likely, without the opportunity for discovery or hearing testimony in most cases) by unspecified staff in OPM’s Merit System Accountability and Compliance (MSAC) office, with no possibility of judicial review or other appeals outside of OPM. Probationers alleging that actions taken against them were based on other forms of illegal intent covered by other statutes (for example, EEO discrimination and reprisal, whistleblower reprisal, and reprisal for uniformed service) would have to separately seek redress through those other claims mechanisms. By re-combining the personnel policy-setting and adjudicative functions back under a single entity, the proposed rule seeks to partially reverse the separation of functions dating from the Civil Service Reform Act of 1978, which severed the former Civil Service Commission into OPM, MSPB and what is now the Office of Special Counsel.
Comments on the proposed rule are due by January 29, 2026.
If you are a current or former probationary employee of the federal government, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.