The Merit Systems Protection Board is striking probationary, layoff and suitability appeals out of its own jurisdiction rule, and in the same document it tells appellants it will not dismiss the cases it already has
Three paragraphs come out of a list.
The Merit Systems Protection Board filed a final rule on Tuesday morning amending 5 CFR 1201.3, the regulation setting out which kinds of appeal the Board has been granted jurisdiction to hear. Paragraph (a)(3), terminations during a probationary or trial period, is removed outright. Paragraph (a)(9), suitability actions, is removed outright. Paragraph (a)(6), reduction in force, is redesignated (a)(5) and rewritten to cover a reduction in force affecting a career or career candidate appointee in the Foreign Service and nobody else.
The Foreign Service carve-out survives for a reason the document is explicit about. It rests on a statute, 22 U.S.C. 4010a, rather than on an Office of Personnel Management regulation, and the same instruction corrects the citation the Board had been carrying, which pointed at 22 U.S.C. 4011.
The Board says it had no discretion
Everything the rule does is downstream of three OPM final rules, each of which this site reported when it was filed. OPM rescinded the regulation that sent probationary terminations to the Board, revised 5 CFR 351.901 to give reduction in force appeal rights exclusively to itself, and revised 5 CFR 731.501 to do the same for suitability actions. The Board is now deleting the entries those regulations used to support.
It issued the rule without notice and comment. The stated basis under 5 U.S.C. 553(b)(B) is that the change merely reflects the rescission of the regulatory bases for the Board's jurisdiction, that the Board "lacks any discretion regarding this change", and that comment procedures are therefore unnecessary.
Two other findings sit oddly together and both are in the document. Section IV.B states that the rulemaking does not reach the $100 million threshold that would require a regulatory impact analysis, and that it has otherwise been designated a significant regulatory action under section 3(f) of Executive Order 12866. Section IV.C certifies no significant economic impact on small entities, on the ground that the Board's rule "does not in itself effect any change".
The sentence appellants should read
Three times, in three different sections, the Board says it is keeping the cases it already has.
It will continue to adjudicate probationary termination, reduction in force and suitability appeals that OPM's rules do not cover, because the actions behind them were taken before those rules took effect. It will accept a reduction in force appeal for filing after 2 September where the agency issued the specific layoff notice before that date. And it states, in terms, that it "will not dismiss such appeals on the ground that OPM's final rule displaced the MSPB's jurisdiction".
That is the Board declining to read the transfer backwards, written into the same document that performs the transfer.
Two dates, one document
The caption at the top of the rule gives an effective date of 2 September 2026. Four pages down, section IV.A finds good cause under 5 U.S.C. 553(d)(3) to make the rule effective immediately upon publication, on the same reasoning used to skip notice and comment. Both sentences are in the text as filed. The document is stamped for publication on 12 August.
