Commerce, Interested Terminated Probationary Employee v. Office of Personnel Management

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

INTERESTED TERMINATED DOCKET NUMBER PROBATIONARY EMPLOYEE - CB-1205-25-0021-U-1 COMMERCE,

Petitioner, v.

OFFICE OF PERSONNEL DATE: June 18, 2026 MANAGEMENT,

Agency, and

DEPARTMENT OF COMMERCE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Debra D’Agostino , Esquire, Ricardo J.A. Pitts-Wiley , Esquire, Joanna Friedman , Esquire, and Heather White , Esquire, Washington, D.C., for the petitioner.

D. Black , Esquire, Eyana Esters , Esquire, Michele Bloom , Esquire, Allison Kidd - Miller , Esquire, and Alex Ehler , Esquire, Washington, D.C., for the Office of Personnel Management.

Christiann C. Burek , Washington, D.C., for the Department of Commerce.

BEFORE Henry J. Kerner, Vice Chairman James J. Woodruff II, Member FINAL ORDER

The petitioner, an interested probationary employee terminated from the Department of Commerce (DOC), requests that the Board review under 5 U.S.C. § 1204(f) whether 10 Federal agencies, including DOC, invalidly implemented Office of Personnel Management (OPM) regulations when they terminated the petitioner and thousands of similarly situated employees during their probationary periods on and shortly after February 14, 2025. 2 For the reasons discussed below, we DENY the request for regulation review.

BACKGROUND

On January 20, 2025, OPM issued a memorandum to agency heads directing them to identify “all employees on probationary periods, who have served less than a year in a competitive service appointment, or who have served less than two years in an excepted service appointment” and to “promptly determine whether those employees should be retained at the agency.” Request File (RF), Tab 1 at 18-20. On January 28, 2025, OPM sent an email to all Federal employees titled “Fork in the Road,” offering a “deferred resignation” program and stating that “the majority of federal agencies are likely to be downsized,” including through reductions in force and furloughs. Id. at 22-24. Approximately 2 weeks later, on February 14, 2025, the Chief Human Capital Officers (CHCO) Council emailed the agency CHCOs and Deputy CHCOs, stating that “[w]e have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17” and attaching a template letter. Id. at 5, 26-27. According to the petitioner, “[b]eginning that very day, February 14, 202[5], upon receipt of this email, agencies terminated the interested persons and thousands of similarly situated probationers.” Id. at 6. The petitioner noted that the termination notices were all similar and cited, as examples, notices from four different agencies issued from February 14-20, 2025. Id. at 6-9.

On March 7, 2025, the petitioner filed the instant request for regulation review, arguing that the agencies, including DOC, invalidly implemented OPM regulations at 5 C.F.R. §§ 315.803(a), .804(a) in conducting the government -wide probationary terminations. RF, Tabs 1, 17. These provisions, as they existed at the time of the challenged terminations, provided: 3

The agency shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment.

5 C.F.R. § 315.803(a);

Subject to § 315.803(b), when an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.

5 C.F.R. § 315.804(a).

The petitioner argues that the agencies violated these provisions by: (1) failing to conduct the individualized assessments required by 5 C.F.R. § 315.803(a) to determine whether each probationary employee “fail[ed] to demonstrate fully his or her qualifications for continued employment”; and (2) terminating probationary employees for reasons not permitted under 5 C.F.R. § 315.804(a)—namely, to downsize the Federal workforce, rather than for an individual’s “work performance or conduct during this period [that] fails to demonstrate his fitness or his qualifications for continued employment.” RF, Tab 1 at 4-6, Tab 16 at 7-13. The petitioner further argues that the en masse termination of probationary employees amounted to an unlawful reduction in force (RIF), taken without regard to the requirements of 5 C.F.R. part 351. RF, Tab 1 at 4-8. Lastly, he argues that the agencies’ actions constituted a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). 4 Id. at 9-10.

In their oppositions to the petitioner’s request for regulation review, OPM and DOC argue that the request must be dismissed for lack of jurisdiction or, in the alternative, for failure to meet the Board’s prudential criteria for review. 5 RF, Tabs 12-13. The petitioner, however, concedes that DOC has canceled the challenged probationary termination and provided all the relief he was seeking. RF, Tab 16 at 4-5.

ANALYSIS

Under 5 U.S.C. § 1204(f), the Board has original jurisdiction to review rules and regulations issued by OPM and to declare such provisions invalid on their face or invalidly implemented by any agency. Tabradillo v. Office of Personnel Management, 93 M.S.P.R. 257, ¶ 2 (2003). The Board will declare a regulation “invalidly implemented by any agency, if the Board determines that such provision, as it has been implemented by the agency through any personnel action taken by the agency or through any policy adopted by the agency in conformity with such provision, has required any employee to violate section 2302(b).” 5 U.S.C. § 1204(f)(2)(B).

The petitioner seeks regulation review pursuant to 5 U.S.C. § 1204(f)(1)(B), which provides that an “interested person” may request regulation review. The term “interested person” has not been defined in the statute or in the relevant regulations. Jones v. Office of Personnel Management, 107 M.S.P.R. 115, ¶ 8 (2007); 5 C.F.R. §§ 1203.1-.22. However, the Board has interpreted the plain meaning of that term to signify that the petitioning person must have an interest in having the Board review the regulation or rule in question because it has some applicability to him or her. Jones, 107 M.S.P.R. 115, ¶ 8. Thus, the question of whether a petitioner is an “interested person” is a “standing” issue. Id., ¶ 9 (citing Senior Executives Association v. Office of Personnel Management , 67 M.S.P.R. 643, 648 (1995)).

As noted above, in his reply, the petitioner acknowledges that, based on declarations provided by agency officials in Maryland v. U.S. Department of Agriculture, No. 25-cv-00748 (D. Md.), “it appears these agencies [including DOC] have all rescinded the probationary terminations of probationary employees done en masse on or shortly after February 14, 2025.” RF, Tab 16 at 4-5. The petitioner notes that the DOC official’s district court declaration states that DOC has reinstated 789 of the 790 terminated probationary employees, with one termination remaining due to misconduct. Id. at 5 n.9. Additionally, the petitioner concedes that, “to the extent the agencies have rescinded in full the terminations of probationary employees executed en mass [sic] on or shortly after February 14, 2025, the agencies have provided the relief sought in the [request for regulation review].” Id. at 13.

Since the record reflects, and the petitioner concedes, that the probationary termination underlying this request for regulation review has been rescinded, the alleged invalid implementation of the regulations is no longer applicable to the petitioner. As such, he does not qualify as an “interested person” entitled to request Board review of OPM’s regulations under 5 U.S.C. § 1204(f)(1)(B). We therefore find that the petitioner does not have standing to request regulation review in this case, and his petition must be denied on that basis. Cf. Jones, 107 M.S.P.R. 115, ¶ 8.

ORDER

The petitioner’s request for regulation review is denied. Title 5 of the Code of Federal Regulations, section 1203.12(a) (5 C.F.R. § 1203.12(a)).

FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.