In two recent proposed rulemakings, the Office of Personnel Management (OPM) seeks to strip additional jurisdiction from the Merit Systems Protection Board over federal employees’ appeals of personnel issues.  The two proposed rules, which are currently open for public comment, follow the same pattern as OPM’s proposed stripping of jurisdiction over probationer appeals, as previously discussed in this blog.

The first proposed rule was published in the Federal Register on February 6, 2026 (2026-02449.pdf or Federal Register :: Suitability Action Appeals ).  In it, OPM seeks to strip MSPB jurisdiction over appeals of suitability-based disciplinary actions.  This proposed rule, when combined with a separate pending OPM proposed rule from last year (previously analyzed in this blog at the draft stage, with limited modifications once published on June 3, 2026), would result in a substantial proportion of adverse actions with MSPB appeal rights being converted into suitability actions directed to OPM’s limited appeal process, potentially affecting possibly as much as 30% of MSPB appeals (using OPM’s own estimated number of transferred appeals from the proposed rule, when compared to the most recently reported year of MSPB appeals statistics).  The deadline for comments on this proposed rule is March 9, 2026.

The second proposed rule was published in the Federal Register on February 10, 2026 (Federal Register :: Reduction in Force Appeals and 2026-02576.pdf).  In it, OPM seeks to strip MSPB jurisdiction over almost all RIF appeals.  The only executive branch employees excepted would be the limited set who have a statutory right to an MSPB RIF appeal (potentially including some veterans, Senior Executive Service members, and Foreign Service Officers).  Unlike the proposed rules for probationers and for suitability actions, the RIF proposed rule states that it is intended to not be retroactive, which would allow any RIF appeals presently ongoing at the MSPB to continue.  Notably, the proposed rule also indicates that it seeks to supersede any RIF protections in union collective bargaining agreements.  The deadline for comments on this proposed rule is March 12, 2026.

All three recent OPM rulemakings in this set follow a common pattern.  OPM proposes to directly adjudicate the relevant category of appeals internally, stripping the MSPB of its historic jurisdiction over such claims.  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 rules seek to further 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.  The concentration of these rulemaking actions may also suggest the possibility that—once the OPM appeals process is up and running—the Administration may plan to cite to the new OPM claims mechanism in order to convince Congress to further truncate (if not eliminate) the independent MSPB, changes which would require new legislation to implement.

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.