2026-03594: Appellate Jurisdiction Update
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The Merit Systems Protection Board (MSPB or Board) is amending its regulations to remove certain appeal rights 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 reflects the Office of Personnel Management's (OPM's) recission of these rights.
The agency’s own summary, as published.
The rule, in full
1,073 words as published, February 23, 2026. View the original →
Federal Register, Volume 91 Issue 35 (Monday, February 23, 2026) [Federal Register Volume 91, Number 35 (Monday, February 23, 2026)] [Rules and Regulations] [Pages 8359-8360] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2026-03594] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. ======================================================================== Federal Register / Vol. 91, No. 35 / Monday, February 23, 2026 / Rules and Regulations [[Page 8359]] MERIT SYSTEMS PROTECTION BOARD 5 CFR Part 1201 Appellate Jurisdiction Update
Agency
Merit Systems Protection Board (MSPB).
Action
Final rule. -----------------------------------------------------------------------
Summary
The Merit Systems Protection Board (MSPB or Board) is amending its regulations to remove certain appeal rights 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 reflects the Office of Personnel Management's (OPM's) recission of these rights.
Dates
This final rule is effective on March 9, 2026.
For Further Information Contact
Gina K. Grippando, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: [email protected].
Supplementary Information
I. Background
The Civil Service Reform Act grants MSPB jurisdiction to hear appeals of any action made appealable to MSPB under law, rule, or regulation. 5 U.S.C. 7701(a). For the benefit of MSPB's stakeholders, MSPB's regulation at 5 CFR 1201.3 contains a list of the types of appeals MSPB has been granted jurisdiction to hear. 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. After notice and comment on a proposed rule, MSPB concurrently 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 the above employee appeal rights. Consequently, MSPB now amends 5 CFR 1201.3 to reflect the removal of these appeal rights, and mirror OPM's new rules, which rescinded the previously codified basis for MSPB jurisdiction.
II. Summary of Changes
Section 1201.3 Appellate Jurisdiction The proposed amendment removes the appeal right in 5 CFR 1201.3(a)(12) from the list of appealable actions identified in section 1201.3(a).
III. Effective Date of Amendment
The amendment described above will go into effect on February 23, 2026.
A. Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(B), MSPB finds that there is good cause to issue this final rule without prior notice and comment. This final rule merely reflects OPM's rescission of the regulatory basis for MSPB's jurisdiction. MSPB lacks any discretion regarding this change, and thus in this rulemaking action. OPM's rescission removes MSPB's jurisdiction over these cases, regardless of whether MSPB updates its regulations to reflect this fact. Accordingly, notice and public comment procedures are unnecessary. Similarly, pursuant to 5 U.S.C. 553(d)(3), MSPB finds that there is good cause to make this final rule effective immediately upon publication. This final rule merely reflects the rescission of the regulatory basis for MSPB's jurisdiction, which took effect on March 9, 2026.
B. Regulatory Impact Analysis: Executive Order 12866
MSPB has examined the impact of this rulemaking as required by Executive Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct agencies to evaluate the benefits and costs of the proposed action. A regulatory impact analysis must be prepared for major rules with effects of $100 million or more in any one year. This rulemaking does not reach that threshold but has otherwise been designated as a ``significant regulatory action'' under section 3(f) of Executive Order 12866, as supplemented by Executive Order 13563.
C. Regulatory Flexibility Act
MSPB certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities because OPM's proposed rule will apply only to Federal agencies and employees, and MSPB's proposed rule does not in itself effect any change but only reflects OPM's amendments to MSPB's regulatory jurisdiction.
D. Paperwork Reduction Act
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. Chapter 35).
D. Executive Order 13132, Federalism
This regulation will not have substantial direct effect on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Aug. 10, 1999), it is determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
E. Executive Order 12988, Civil Justice Reform
This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988 (Feb. 7, 1996).
F. Unfunded Mandates Reform Act of 1995
This rulemaking will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Thus, no written assessment of unfunded mandates is required. [[Page 8360]] List of Subjects in 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. Under the authority of 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, and for the reasons set forth above, 5 CFR part 1201 is amended as follows: PART 1201--PRACTICES AND PROCEDURES 0
1. The authority citation for part 1201 continues to read as follows:
Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. Sec. 1201.3 [Amended] 0
2. Amend Section 1201.3 by removing paragraph (a)(12).
Gina K. Grippando, Clerk of the Board. [FR Doc. 2026-03594 Filed 2-20-26; 8:45 am] BILLING CODE 7400-01-P
What this changes
Amends 1 part of the Code of Federal Regulations — the standing rules this notice rewrites.
Documents
- Full text (Federal Register) · February 23, 2026
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