OPM takes probationary appeals from the MSPB too

An Office of Personnel Management final rule published on 3 August 2026 took effect on 2 September, establishing a new 5 CFR part 751 for appeals by employees terminated during a probationary or trial period.¹ OPM states that Executive Order 14284, “Strengthening Probationary Periods in the Federal Service,” “rendered the prior procedures for appealing such actions to the Merit Systems Protection Board (MSPB) inoperative,” and that the rule “establishes a new, limited appeals process adjudicated by OPM.”¹² It is the companion to the reduction-in-force appeals rule that took effect the same day (see OPM replaces the MSPB on reduction-in-force appeals and bars judicial review).³

1. Two issues are appealable and everything else is closed. Section 751.101(c) permits an appeal only where the employee alleges the action “was based on partisan political reasons or marital status,” or where a termination “based in whole or in part on conditions arising before his or her appointment” was taken without advance written notice, a reasonable time to answer, and a written decision.¹ Section 751.101(d) then provides that “[a]n employee may not appeal under this part any other issue not specified in paragraph (c).”¹

2. The employee carries the burden on jurisdiction and on the merits alike. Under section 751.101(b) the appellant must show by a preponderance of the evidence the timeliness of the appeal, “[t]hat OPM possesses jurisdiction over the appeal,” and that the agency’s action was discriminatory on those grounds or failed to follow the procedures.¹ Section 751.103(b) gives the agency 30 calendar days after service to respond.¹

3. The exclusivity clause is the one the corpus has already seen. Section 751.101(e) makes the part “the sole means of appealing a covered action,” preserving matters “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,” and closes with the sentence “[a] party cannot obtain judicial review of a decision under this part.”¹ The reduction-in-force appeals rule codified the same bar at 5 CFR 351.901(c)(4).³

4. OPM adjudicates, and the safeguards differ depending on who the employer is. For employees of other agencies, § 751.105(a) provides that OPM “will assign personnel to adjudicate an appeal under this subpart by an employee of an agency other than OPM,” that those personnel “shall be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action,” and that adjudicators “shall not consider material ex parte communications concerning the merits of an appeal.” No OPM employee may be assigned where they have “a relationship with the appellant” or where, “during the preceding two years, that person was an employee of the agency that is party to the action,” and OPM “may assign an administrative law judge” where necessary.¹ For OPM’s own employees the scheme is different and more insulated: § 751.105(b) requires that OPM “assign an administrative law judge to adjudicate an appeal under this subpart by an OPM employee and to issue an initial decision,” and that “[t]o 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.”¹ In neither case is adjudication transferred to a separate agency.¹