Probationary Appeals Return, at OPM: Three Grounds, 30 Days and No Court

Bottom line

If you were a probationary employee terminated at any point since April 2025, where could you appeal? Nowhere, administratively ^[1]. A final OPM rule published August 3 creates a route again, as new 5 CFR part 751, but it runs to OPM rather than the Merit Systems Protection Board, covers three narrow grounds, and ends without judicial review ^[1]. It applies only to terminations effected on or after September 2 ^[1].

What happened: a new part 751 for probationary appeals

The rule is FR Doc. 2026-15654, “Streamlining Probationary and Trial Period Appeals,” one of four OPM rules issued July 31 ^{[1, 3, 4]}. Yesterday’s memo covered the two RIF rules from the same release.

How we got here. Executive Order 14284, signed April 24, 2025, created Civil Service Rule XI ^[2]. Under it, a probationer’s service ends on the last day of the period unless the agency certifies, within the prior 30 days, that finalizing the appointment “advances the public interest” ^[2]. The order also declared the old appeal procedures in 5 CFR part 315, subpart H, “inoperative and without effect” and let the OPM Director write new ones ^[2]. OPM rescinded subpart H on June 24, 2025 ^[1]. Federal News Network describes that 2025 rule as giving agencies “more leeway to fire probationary employees” ^[4]. Since then, the rule says, “no administrative appeals process has existed” for these terminations ^[1].

Who can appeal ^[1]:

• Competitive service employees who have not completed 1 year of current continuous service under a nontemporary appointment.
• New supervisors and managers moved back to a nonsupervisory job for failing a supervisory probationary period.
• Emergency-indefinite appointees in their first year.
• Excepted service employees in a trial period under 5 CFR part 307. Other excepted service trial-period employees are left out unless another law gives them a right.

What can be appealed. A termination, a supervisory reassignment, a decision not to certify, or a failure to certify and finalize the appointment ^[1]. The employee must prove, by a preponderance of the evidence, that the action rested on partisan political reasons or marital status, or that a termination based on pre-appointment conditions skipped three steps: advance written notice with detailed reasons, a reasonable time to answer, and a written decision ^[1]. “An employee may not appeal under this part any other issue,” the rule says ^[1]. Claims of race, sex, age or disability discrimination go to the EEO process and can no longer ride along with the appeal ^[1].

The process ^[1]:

• File through OPM’s e-filing system within 30 calendar days of the effective date.
• The agency answers within 30 days and must produce its complete record, including any certification or noncertification document, with a statement that the record is complete.
• The employee may reply within 15 days. New allegations are allowed only if they rest on something first disclosed in the agency’s response, or with OPM’s leave.
• Decision on the written record. A hearing happens only when OPM finds it “necessary and efficient.”
• Either side may seek reconsideration within 30 days. The Director may reopen any decision before it becomes final.

Then the sentence readers should note: “A party cannot obtain judicial review of a decision under this part” ^[1]. Government Executive reports the cases will go to OPM’s Office of Merit System Accountability and Compliance, with the Director having the final word ^[3]. OPM says Congress never gave probationers a statutory route to court, and that earlier review existed only because OPM had chosen to send these appeals to the MSPB ^[1].

What changed from the proposal. OPM received 632 comments ^[1]. The final text adds a minimum agency record, the reply exception for new information, and firmer separation between OPM adjudicators and the officials behind the challenged action ^[1]. No adjudicator may have worked at the employing agency in the past two years ^[1]. Appeals by OPM’s own employees go to an administrative law judge ^[1]. OPM also promises a public website of final merits decisions ^[1].

What it means for you: who gains a door, and how narrow it is

Probationers terminated before September 2. This rule does not help you. OPM calls it prospective and says terminations between the executive order and this rule “are not subject to any administrative appeal” ^[1]. Commenters said the rule was meant to “cover up” the 2025 terminations; OPM disagreed, saying it does not reopen or extinguish pending cases or litigation ^[1].

Current probationers. The appeal right is real but small. A termination for performance, conduct or the agency’s needs, the factors Rule XI lets an agency weigh, is not an appealable ground ^{[1, 2]}. Under Rule XI, the burden of showing why your appointment should be finalized sits with you, not the agency ^[2]. Readers should keep every written notice. The 30-day clock starts at the effective date, and if you cannot e-file, OPM will not find good cause for lateness unless you asked for an exemption before the deadline ^[1].

Employees who have passed one year of current continuous service. You are outside part 751 and may have appeal rights under the chapter 43 or chapter 75 regulations instead ^[1].

Excepted service employees. Coverage depends on the appointing authority. Outside part 307, there is no appeal right under this rule ^[1].

New supervisors. Failing a supervisory probationary period can be appealed to OPM only on the partisan-political or marital-status grounds ^[1].

Union representatives. You may represent a probationer, but not while on duty or official time, and not with agency reimbursement ^[1]. OPM or the agency may also disallow a representative who works for either one when there is a conflict of interest ^[1].

Supervisors and HR offices. The rule writes Rule XI’s review steps into 5 CFR 11.5 ^[1]. Agency heads must designate reviewing officials in writing; a designated official must meet with each probationer at least 60 days before the period ends; the decision comes within the last 30 days; and finalizing requires written certification ^[1]. The executive order asked for that meeting “to the extent practicable” ^[2]. The regulation drops the qualifier ^[1]. Yet a missed meeting, or a missing written notice of the effective date, is not grounds for appeal; OPM points instead to oversight reviews and the administrative-error petition, which only the agency head may file ^{[1, 2]}.

Contractors. The rule covers federal appointees only and does not reach contractor staff ^[1].

Questions you’re probably asking

Can I appeal a probationary termination that happened before September 2, 2026?

Not under this rule. It does not govern terminations effected before September 2, and OPM states that terminations between Executive Order 14284 and the rule’s finalization are not subject to any administrative appeal ^[1]. Discrimination claims can still go through the EEO process ^[1].

What reasons can I give to appeal a probationary termination to OPM?

Three: the action was based on partisan political reasons, it was based on marital status, or the agency skipped required procedures when the termination rested on conditions arising before your appointment ^[1]. Poor performance or conduct findings are not themselves appealable ^[1].

How long do I have to file a probationary appeal with OPM?

Thirty calendar days from the effective date of the termination, filed through OPM’s e-filing system by 11:59 p.m. Eastern on the 30th day ^[1]. A late appeal is dismissed unless OPM finds good cause, at its sole discretion ^[1].

Can a union steward represent me on official time in a probationary appeal?

A representative of your choice is allowed, but a federal employee acting as your representative may not do the work in a duty status, including official time, or claim agency reimbursement ^[1]. OPM says official time would be unavailable for these appeals by statute in any case ^[1].

What do I get if I win a probationary appeal at OPM?

OPM orders the action corrected, with back pay, interest and reasonable attorney fees under the Back Pay Act regulations ^[1]. Compensatory damages are not available ^[1].

What I’m watching

• September 2, 2026: part 751 takes effect for terminations on or after that date ^[1].
• Before September 2 (no date given): OPM’s e-filing instructions, which the rule says will be identified on OPM’s website ^[1].
• No date set: the first published final merits decisions, which will show how OPM reads “partisan political reasons” in practice ^[1].