Streamlining Probationary and Trial Period Appeals

OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Parts 230, 315, 432, 751, and 752</CFR> <DEPDOC>[Docket ID: OPM-2025-0013]</DEPDOC> <RIN>RIN: 3206-AO96</RIN> <SUBJECT>Streamlining Probationary and Trial Period Appeals</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Personnel Management (OPM) is proposing a rule to change the circumstances and procedures for adjudicating appeals from employees covered by these provisions and terminated during their probationary or trial periods and supervisors and managers who fail to complete their probationary periods. This change follows the President's rescinding of the regulations at subpart H of part 315 of this chapter as directed by Executive Order 14284. As proposed, employees would file appeals limited to: discrimination based on partisan political reasons or marital status; and failure to follow procedures for terminations based upon pre-appointment reasons. OPM would replace the Merit Systems Protection Board (MSPB) as the adjudicative agency for all appeals. Employees who wish to pursue claims of discrimination under statutes administered by the Equal Employment Opportunity Commission (EEOC) would not be allowed to raise these claims with OPM. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before January 29, 2026. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by the following method: <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for sending comments. All submissions must include the agency name and docket number or RIN for this rulemaking. Please arrange and identify your comments on the regulatory text by subpart and section number; if your comments relate to the supplementary information, please refer to the heading and page number. All comments received will be posted without change, including any personal information provided. To ensure that your comments will be considered, you must submit them within the specified open comment period. Before finalizing this rule, OPM will consider all comments within the scope of the regulations received on or before the closing date for comments. OPM may make changes to the final rule after considering the comments received. As required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in the docket for this rulemaking at <E T="03">www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carol Matheis by email at <E T="03">employeeaccountability@opm.gov</E> or by phone at (202) 606-2930. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> OPM proposes this rule to establish streamlined appeal procedures for employees terminated during their probationary or trial periods and supervisors and managers who fail to complete their probationary periods. Under Executive Order (E.O.) 14284, the President rendered the probationary period appeal procedures in subpart H of part 315 of this chapter “inoperative and without effect” and directed OPM to rescind those regulations and make conforming amendments. OPM published a final rule implementing those directives on June 24, 2025, at 90 FR 26727. E.O. 14284 delegated authority to OPM to establish such procedures by regulation. The proposed rule removes authority from the MSPB for actions under subpart I of part 315 of this chapter and grants authority to OPM to adjudicate appeals. The proposal would grant authority to OPM to adjudicate appeals by employees terminated during their probationary or trial periods and by supervisors and managers who fail to complete their probationary periods (akin to the former § 315.806 and the current § 315.908, respectively). OPM will only adjudicate appeals that allege either discrimination based on partisan political reasons or marital status; or an agency's failure to follow procedures for terminations based upon pre-appointment reasons. Employees will not, however, be able to attach claims of unlawful discrimination under the laws administered by the EEOC to an appeal as previously permitted before issuance of E.O. 14284. Employees may pursue such claims at the EEOC to the same extent they could do so before issuance of E.O. 14284. Additionally, when OPM adjudicates an appeal, it will do so based on the written record without the need of extensive discovery. However, where OPM determines additional information is necessary, it may conduct an investigation or audit into an agency's termination action. An appellant will not have a right to a hearing, but OPM may conduct one only when necessary and where it will aid in the efficient resolution of an appeal. Lastly, the proposed rule provides a procedure for an appellant to seek reconsideration of the decision. <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">a. History of Probationary Periods in the Federal Service</HD> Since the dawn of the modern civil service, it has been widely recognized—by courts, by OPM, and by OPM's predecessor agency, the Civil Service Commission—that Federal employees serving a probationary or trial period had far more limited procedural rights regarding their terminations than other Federal employees. “Probation” comes from the Latin “probatio,”  <SU>1</SU> <FTREF/> which means “trying, proving” or “a trial, inspection, [or] examination.”  <SU>2</SU> <FTREF/> Ballentine's Law Dictionary defines “probationary status” in relevant part as “[a] person having a period of probation in a civil service position by way of a further test of his qualifications for appointment.”  <SU>3</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">Webster's Revised Unabridged Dictionary of the English Language, available at</E> <E T="03">https://www.websters1913.com/words/Probation.</E> </FTNT> <FTNT> <SU>2</SU>  Charlton T. Lewis & Charles Short, <E T="03">A Latin Dictionary,</E> Oxford: Clarendon Press, <E T="03">available at https://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0059:entry=probatio</E> (1879). </FTNT> <FTNT> <SU>3</SU>   <E T="03">Ballentine's Law Dictionary,</E> (3rd ed. 1969). </FTNT> The concept of a probationary, or trial, period in the U.S. civil service dates to the Pendleton Civil Service Act of 1883 (Pendleton Act). The Pendleton Act required “that there shall be a period of probation before any absolute appointment or employment aforesaid.”  <SU>4</SU> <FTREF/> The new Civil Service Commission created by the Pendleton Act reflected a similar understanding of probation. In its first annual report in 1884, the Commission characterized the probationary period as lasting “six months before any absolute appointment can be made. At the end of this time the appointee goes out of the service unless then reappointed.”  <SU>5</SU> <FTREF/> Two years later, the Commission wrote in its third annual report that “doing the public work is precisely what the Merit System provides. If at its termination the appointing officer is not . . . willing to make an unconditional appointment, the probationer is . . . absolutely out of the service without any action on the part of the Government. <SU>6</SU> <FTREF/> In 1897 President William McKinley signed E.O. 101, Amending Civil Service Rules Regarding Removal from Service, adding a number 8 to Rule II that stated: “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department, or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.” <FTNT> <SU>4</SU>  The Pendleton Act of 1883, 22 Stat. 403, 404 (1883), <E T="03">available at https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/22/STATUTE-22-Pg403a.pdf.</E> </FTNT> <FTNT> <SU>5</SU>  First Annual Report of the United States Civil Service Commission to the President (1884), p. 29, <E T="03">available at https://babel.hathitrust.org/cgi/pt?id=nnc1.cu09006737&seq=9.</E> </FTNT> <FTNT> <SU>6</SU>  Third Annual Report of the United States Civil Service Commission to the President (1886), p. 36, <E T="03">available at https://babel.hathitrust.org/cgi/pt?id=njp.32101073361022&seq=40.</E> </FTNT> In 1910, the Court of Claims explained in the case of <E T="03">Ruggles</E> v. <E T="03">United States</E> that probationers lacked any cognizable legal rights under the rules or the Pendleton Act. <SU>7</SU> <FTREF/> <FTNT> <SU>7</SU>  45 Ct. Cl. 86 (Ct. Cl. 1910). </FTNT> With the enactment of the Lloyd-Lafollette Act of 1912, Congress created the first legislative codification of protection against removal for civil servants. The Act established “[t]hat no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service.”  <SU>8</SU> <FTREF/> The Act also imposed certain procedural requirements on removals including advance notice and an opportunity to respond in writing. <SU>9</SU> <FTREF/> However, Congress did not establish employment protections for probationary employees. <FTNT> <SU>8</SU>  The Lloyd-La Follette Act, 37 Stat. 555 (1912), as amended, 62 Stat. 354 (1948), 5 U.S.C.A §§ 652(a). </FTNT> <FTNT> <SU>9</SU>   <E T="03">Id.</E> </FTNT> After the passage of the Lloyd-La Follette Act and the court's decision in <E T="03">Ruggles,</E> the Civil Service Commission took the opportunity to clarify that the removal rules first established in 1897 should never have been treated as creating any serious limits on removing civil servants from employment. <SU> ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 119k characters. 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