Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—MSPB amends regs reflecting removal of certain appeal rights from MSPB jurisdiction, (Feb 20, 2026)

By Brandi O. Brown, J.D.

This completes the reversal of actions taken under the Biden administration in 2024.

Closing the loop started by OPM earlier this month, MSPB has now announced a final rule amending its regulations to remove rights to appeal to MSPB for actions related to placement or movement of a civil service employee into an excepted service position without civil service protection. This rule is intended to reflect OPM’s rescission of those rights.

Where it started. In 2024, following notice and comment on a proposed rule, OPM issued a final rule, 5 CFR 302.603, which conferred jurisdiction on MSPB to hear appeals from: (1) federal employees moved from the competitive service into the excepted service, or moved between schedules in the excepted service, when the agency asserts that the employee would lose appeal rights, competitive status, or other previously accrued protections as a result of that move; and (2) an agency’s failure to provide required notice to the employee regarding whether the move would affect the employee’s appeal rights, competitive status, or other accrued protections. At the same time, after notice and comment, MSPB amended 5 CFR 1201.3 to reflect MSPB’s new jurisdiction over the appeal rights conferred by OPM’s rule, 5 CFR 302.603. MSPB’s amendment was codified at 5 CFR 1201.3(a)(12).

On February 6, 2026, OPM rescinded 5 CFR 302.603, which had conferred jurisdiction on MSPB to hear those employee appeal rights. In this final rule, MSPB announces amendment of 5 CFR 1201.3 to reflect the same removal of these appeal rights, and mirror OPM’s new rules, which rescinded the previously codified basis for MSPB jurisdiction.

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