Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—MSPB amends appellate jurisdiction regulations to reflect OPM rescission of appeal rights, (Aug 12, 2026)

By Patricia K. Ruiz, J.D.

The rule removes references to probationary termination, reduction-in-force, and suitability cases while preserving certain pending matters and Foreign Service authority.

The Merit Systems Protection Board (MSPB) issued a final rule today amending its appellate jurisdiction regulations to remove references to appeals involving probationary terminations, reductions in force, and suitability actions that previously fell within the board's jurisdiction under Office of Personnel Management (OPM) regulations. The amendments are intended to conform MSPB regulations to OPM rules that rescinded those appeal rights and reassigned them to OPM. The rule takes effect September 2, 2026, but MSPB said it will continue adjudicating certain pending and preexisting cases that are not covered by OPM's new rules.

Background. The Civil Service Reform Act authorizes MSPB to hear appeals made appealable under law, rule, or regulation, and MSPB's regulations at 5 C.F.R. § 1201.3 list the categories of cases within the board's jurisdiction. Before this rulemaking, that list included provisions covering appeals involving terminations during probationary or supervisory probationary periods, reductions in force, and suitability actions. According to the board, OPM regulations had previously supplied the jurisdictional basis for those appeals, except for certain Foreign Service reduction-in-force cases authorized by statute.

Probationary and trial period appeals. OPM issued a final rule on June 24, 2025, stating that Executive Order 14284, "Strengthening Probationary Periods in the Federal Service," superseded and rendered inoperative subpart H of 5 C.F.R. part 315. OPM consequently rescinded 5 C.F.R. § 315.806, which had provided MSPB appeal rights for employees terminated during a probationary or trial period after an initial competitive service appointment.

OPM revised 5 C.F.R. § 315.908(b), effective September 2, 2026, eliminating MSPB appeal rights for competitive-service managerial and supervisory employees who alleged certain actions were based on partisan political affiliation or marital status. Under the revised rule, those appeals will instead go to OPM. MSPB said it is therefore removing the corresponding jurisdictional provision from 5 C.F.R. § 1201.3(a)(3). MSPB emphasized that OPM's probationary-period rule applies to actions effected on or after September 2, 2026, and does not affect pending MSPB appeals or future appeals arising from actions taken before that date.

Reduction-in-force appeals. The final rule responds to OPM's revision of 5 C.F.R. § 351.901, effective September 2, 2026. MSPB said the revised regulation rescinds appeal rights that previously allowed federal employees subjected to a reduction in force to appeal to MSPB and instead directs those appeals exclusively to OPM. As a result, MSPB is amending 5 C.F.R. § 1201.3(a)(6) to remove the corresponding jurisdictional reference. The board stated that the change does not affect a separate statutory right allowing career and career-candidate appointees in the Foreign Service to appeal reduction-in-force actions to MSPB under 22 U.S.C. §4010a. The final rule retains that authority in a redesignated provision and updates the regulatory citation to reference Section 4010a.

MSPB explained that OPM's reduction-in-force rule applies only where an agency issues a specific reduction-in-force notice on or after the rule's effective date. The board said it will continue adjudicating appeals involving reduction-in-force actions taken before that date and will accept such appeals for filing when the agency notice predates the effective date.

Suitability appeals. MSPB amended its regulations to reflect OPM's revision of 5 C.F.R. § 731.501. According to the board, the OPM rule rescinds MSPB appeal rights for individuals subjected to suitability actions, including cancellation of eligibility, removal, cancellation of reinstatement eligibility, and debarment, and instead provides appeal rights exclusively to OPM. The board removed the corresponding jurisdictional reference from 5 C.F.R. § 1201.3(a)(9). MSPB added that OPM's suitability rule does not apply to suitability appeals filed with MSPB before the effective date of OPM's rule and that the board may continue adjudicating those matters.

Regulatory changes. The final rule removes paragraphs (a)(3) and (a)(9) from 5 C.F.R. § 1201.3, redesignates several remaining provisions, and revises the newly redesignated paragraph (a)(5) to cover only reduction-in-force actions affecting career or career-candidate appointees in the Foreign Service under 22 U.S.C. § 4010a. The rule removes references to appeal rights for competitive-service and managerial or supervisory employees terminated during probationary or trial periods, federal employees subjected to reductions in force, and applicants, appointees, and employees subjected to suitability actions.

Effective date and implementation. The rule becomes effective September 2, 2026. MSPB stated that it will not apply the amendments to probationary-termination, reduction-in-force, or suitability appeals pending on that date. The board also said it will continue adjudicating reduction-in-force appeals received after September 2, 2026, when the reduction-in-force action predates that date, as well as probationary-termination appeals under 5 C.F.R. § 315.908(b) involving actions effected before September 2, 2026.

Administrativefindings. MSPB issued the rule without prior notice and comment, invoking the Administrative Procedure Act's good-cause exception. The board stated that the rule merely reflects OPM's rescission of the regulatory bases for MSPB jurisdiction and that MSPB lacks discretion regarding those changes. The board also designated the rule as a significant regulatory action under Executive Order 12866, while stating that it does not reach the threshold requiring a regulatory impact analysis for rules with effects of $100 million or more in a year.

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