PART 751—PROBATIONARY AND TRIAL PERIOD APPEALS Authority: 5 U.S.C. 1103, 1302, 3301, 3302, 3321, 5596; E.O. 14284, 90 FR 17729; 5 CFR 11.6. Source: 91 FR 49111, Aug. 3, 2026, unless otherwise noted. § 751.101 Right to appeal. (a) Right of appeal. (i) Termination during a probationary or trial period required under 5 CFR part 11 or other authority administered by OPM; (ii) Assignment to a nonsupervisory or nonmanagerial position for failure to complete a supervisory or managerial probationary period required under subpart I of part 315 of this chapter; (iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or (iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period. (2) An individual serving a probationary or trial period does not have a right to appeal their termination under this part if the individual has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. Such individual may have a right to appeal under the provisions of 5 CFR 432.106 or 752.405, as appropriate, provided that such appeal is not excluded by the provisions of § 432.102(b), (d), or (f), or § 752.401(b) or (d), of this chapter. (b) Burden of proof. i.e., (1) The timeliness of the written appeal; (2) That OPM possesses jurisdiction over the appeal; and (3) That the agency's action was discriminatory based on partisan political reasons or marital status or failed to follow the procedures for terminating the employee for reasons based in whole or in part on conditions arising before the employee's appointment. (c) Appealable issues Discrimination. (i) Termination not required by statute; (ii) Assignment to a nonsupervisory or nonmanagerial position under § 315.907 of this chapter; (iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or (iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period. (2) Improper procedure. (i) Advance written notice stating the reasons, specifically and in detail, for the proposed action; (ii) A reasonable time for filing a written answer to the notice of proposed termination and for furnishing affidavits in support of his or her answer. If the employee answers, the agency shall consider the answer in reaching its decision; and (iii) A written decision at the earliest practicable date delivered at or before the effective date of the action. The decision shall inform the employee of the reasons for the action, the right to appeal to OPM, the need to include documented supporting facts, and time limits within which the appeal must be submitted under this section. (d) Nonappealable issues. (e) Exclusive appeal procedure. (f) Definition of employee. (1) To the competitive service as described in 5 CFR 11.2 who has not completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less; (2) To the competitive service and serving a probationary period on an initial appointment to a supervisory or managerial position under subpart I of part 315 of this chapter; (3) To the competitive service under an emergency-indefinite appointment in a national emergency serving a probationary period under subpart D of part 230 of this chapter and who is in the first year of service; or (4) To the excepted service before the end of their first year on an initial appointment under part 307 of this chapter. Employees serving in an appointment in the excepted service outside of part 307 of this chapter are not covered under this section and, therefore, may not appeal a termination during their trial period unless otherwise entitled by statute. [91 FR 49111, Aug. 3, 2026; 91 FR 54793, Aug. 25, 2026] § 751.102 Procedures for submitting appeals. (a) Filing an appeal. (b) Time limits. (1) In computing the number of days allowed for filing an appeal, the first day counted is the day after the effective date of an agency action. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date. (2) If an employee does not file an appeal within the time set by this section, the appeal will be dismissed as untimely filed unless the employee demonstrates good cause for an untimely appeal. The determination of good cause will be in the sole and exclusive discretion of OPM. (c) E-filing procedures. (2) Registration as an e-filer constitutes consent to accept electronic service of pleadings, evidence, notices, orders, and other documents filed by other e-filers or issued by OPM. No party may electronically file any document with OPM or access an appeal or reconsideration of an appeal unless registered as an e-filer or exempted under paragraph (c)(7) of this section for good cause. (3) All notices, orders, decisions, and other documents issued by OPM, as well as all documents filed by parties, will be made available for viewing and downloading at OPM's electronic filing system. Access to documents is limited to the parties and their representatives who are registered e-filers in the cases in which they were filed. (4) All parties and their representatives must follow the instructions on OPM's website for properly filing all pleadings, evidence, and other documents. OPM may strike a document where an e-filer repeatedly fails to follow these instructions following receipt of a show cause order. (5) Each e-filer must promptly update their profile in OPM's electronic filing system and notify OPM and other parties of any change in their address, telephone number, or email address by filing a pleading in each pending case with which they are associated. E-filers are responsible for monitoring case activity regularly in OPM's electronic filing system to ensure that they have received all case-related documents. (6) A party or representative may withdraw their registration as an e-filer pursuant to the requirements posted on OPM's website. Withdrawing registration in OPM's electronic filing system means that, effective upon OPM's processing of a proper withdrawal, pleadings, evidence, orders, and other documents filed by a party, a party's representative, or OPM will no longer be served on that person electronically and that person will no longer have electronic access to their case records through OPM's electronic filing system. OPM may still process an appeal or request for reconsideration after a party withdraws as an e-filer. Withdrawal of e-filing registration by a party or representative will not be considered good cause for staying a case. (7) OPM, in its sole and exclusive discretion, may exempt a party or representative from registering as an e-filer for good cause. A party or representative must promptly contact OPM as instructed on OPM's website to request an exemption from the e-filing requirements in this part. OPM will not find good cause for failing to timely file an appeal or seek reconsideration if the party or representative fails to contact OPM to request an exemption before any deadline to appeal or seek reconsideration. (8) Documents filed in OPM's electronic filing system are deemed received on the date the electronic submission is timestamped by OPM based on the Eastern Time Zone. [91 FR 49111, Aug. 3, 2026; 91 FR 54793, Aug. 25, 2026] § 751.103 Form and content of probationary or trial period appeal and agency response. (a) Initial appeal. (b) Agency response. (i) The name of the appellant and of the agency whose action the appellant is appealing; (ii) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action; (iii) All documents contained in the agency record of the action; (iv) Designation of and signature by the authorized agency representative; and (v) Any other documents or responses requested by OPM. (2) The agency's 30 days to respond begins upon service of the appeal. (3) The agency record of the action shall include, at a minimum: (i) All documents considered or relied upon by the agency in taking the action; (ii) The notice of action and effective date; (iii) Documents showing the appellant's appointment, service history, and probationary or trial period status; (iv) Any written certification, noncertification, or failure-to-certify record under 5 CFR part 11; (v) Any documents supporting the agency's basis for the action under appeal; and (vi) A certification that the agency has produced the complete record considered by the deciding official or otherwise relied upon by the agency. (4) The agency must produce the complete agency record to OPM. The agency must serve the appellant with the agency record, except that the agency may redact or withhold information from the copy served on the appellant to the extent necessary to comply with the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law. (c) Reply. (d) Inspection of OPM's appellate record. (e) Service of documents. (f) Untimely filings. [91 FR 49111, Aug. 3, 2026; 91 FR 54793, Aug. 25, 2026] § 751.104 Employee representatives. (a) Designation of representative. (b) Federal employee representatives; official time and reimbursement. (c) Disallowance of representative. [91 FR 49111, Aug. 3, 2026; 91 FR 54794, Aug. 25, 2026] § 751.105 Adjudication of appeals. (a) Appeals by non-OPM employees. ex parte (b) Appeals by OPM employees. harmful procedural irregularity (c) Ascertainment of facts. necessary and efficient (1) Inform the employee, the employee's representative, and the agency of an investigation or audit; and (2) Provide the employee, the employee's representative, and the agency with the results of an investigation or audit, and a reasonable opportunity to submit arguments or additional information to support their positions. (d) Initial decision. (e) Remedies. (2) If the agency timely requests reconsideration of an initial decision or OPM reopens and reconsiders an initial decision, the agency must continue to provide the relief ordered unless OPM issues an order staying any such relief. No such stay may be ordered that would deprive the employee of pay and benefits while the initial decision is pending reconsideration. [91 FR 49111, Aug. 3, 2026; 91 FR 54794, Aug. 25, 2026] § 751.106 Sanctions and protective orders. (a) Cease-and-desist directive. sua sponte, (b) Failure to comply with an OPM directive. (1) Draw all inferences in opposition to the noncompliant party with regard to the appeal in question; (2) Prohibit the noncompliant party from introducing evidence, or additional evidence, concerning the appeal, or otherwise relying on the record; or (3) Eliminate from consideration any appropriate part of the filings or other submissions of the noncompliant party. (c) Scope of sanctions. § 751.107 Requests for reconsideration of an initial decision. (a) Upon a timely request from either party to the dispute or upon its own initiative, OPM may, in its sole and exclusive discretion, reopen and reconsider an initial decision issued under this part. An employee, the employee's representative, or agency may request reconsideration of an initial decision within 30 calendar days from issuance of the decision. The request for reconsideration must be filed as directed in the initial decision. (b) Grounds for which OPM may grant a request for reconsideration are: (1) The initial decision contains erroneous findings of material fact sufficient to warrant an outcome different from that of the initial decision; (2) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The party must explain how the error affected the outcome of the case; (3) New and material evidence or legal argument is available that, despite the party's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed; or (4) OPM finds good cause to reconsider an appeal. (c) In any case that is reopened or reviewed, OPM may: (1) Issue a reopened and reconsidered decision (“R&R decision”) that affirms, reverses, modifies, vacates, or otherwise decides the case, in whole or in part; (2) Require the parties to submit argument and evidence; (3) Take any other action necessary for final disposition of the case; and (4) Issue an order with a date for compliance with the R&R decision. (d) There is no further right of administrative appeal from the R&R decision. [91 FR 49111, Aug. 3, 2026; 91 FR 54794, Aug. 25, 2026] § 751.108 Review by the OPM Director. The Director may, on the Director's own initiative and before a decision becomes final under § 751.109, reopen and reconsider any initial decision or reopened and reconsidered decision. In determining whether to exercise this authority, the Director may consider, among other things, whether the decision may contain clear legal error; may rest on an erroneous finding of material fact; may involve an issue of exceptional importance, an issue affecting the administration of the civil service laws, rules, regulations, or OPM policy, or a conflict among OPM decisions; or otherwise warrants Director review. This section does not create a right to request Director review. Upon reopening and reconsideration, the Director may take any action described in § 751.107(c). § 751.109 Final decision. (a) The initial decision becomes OPM's final decision 30 calendar days after issuance unless, before that time, a party timely requests reopening and reconsideration under § 751.107 or the Director reopens the decision under § 751.108. (b) A timely request under § 751.107 suspends finality. If OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes OPM's final decision 30 calendar days after issuance of the denial or dismissal, unless the Director reopens the initial decision under § 751.108 before that time. If OPM grants the request, a reopened and reconsidered decision becomes OPM's final decision 30 calendar days after issuance unless the Director reopens that decision under § 751.108 before that time. (c) An untimely request under § 751.107 does not suspend or otherwise affect finality. If OPM accepts and grants an untimely request for good cause, any resulting reopened and reconsidered decision becomes final as provided in paragraph (b) of this section. (d) A decision by the Director pursuant to § 751.108 that disposes of the appeal is OPM's final decision and is effective upon issuance. If the Director remands the appeal or directs further proceedings, any resulting decision becomes final under this section. (e) There is no further right of appeal of a final decision of OPM. (f) Subject to applicable legal limits, including requirements protecting privacy, privileged information, protected personal information, law-enforcement-sensitive information, and other information that may not lawfully be disclosed, OPM shall maintain a publicly accessible website containing final decisions issued under this part that address a party's claim on the merits. Any final merits decision not made publicly available because of such legal limits shall be made available upon request to the Federal employee or former Federal employee involved in a proceeding under this part, his or her representative selected pursuant to § 751.104, or a representative of the Federal agency or office involved in the proceeding who has a need to know. [91 FR 49111, Aug. 3, 2026; 91 FR 54794, Aug. 25, 2026]