September 2: OPM Starts Deciding Appeals About Its Own Rules

On September 2, 2026, three categories of federal employee appeals — reduction in force, probationary and trial period actions, and suitability actions — move out of the Merit Systems Protection Board and into the Office of Personnel Management. OPM published all three final rules on August 3, 2026, and all three take effect the same day.

The short version: the agency that wrote the rules will now decide whether the rules were followed.

What Changes on September 2

Three OPM final rules published in the Federal Register on August 3, 2026 do the work:

• Reduction in Force Appeals, 91 Fed. Reg. 49230
• Streamlining Probationary and Trial Period Appeals, 91 Fed. Reg. 49072
• Suitability Action Appeals, 91 Fed. Reg. 49034

Each is effective September 2, 2026. Together they route appeals that have gone to the Board for nearly five decades into an in-house OPM process instead.

Congress Split These Two Jobs in 1978 for a Reason

This is not a new experiment. It is an old one, run in reverse.

Before 1978, the Civil Service Commission both managed the federal workforce and adjudicated employees' appeals. In his May 23, 1978 message to Congress transmitting Reorganization Plan No. 2, President Carter explained why that had to end: "The Civil Service Commission has acquired inherently conflicting responsibilit[ies]: to help manage the Federal Government and to protect the rights of Federal employees. It has done neither job well."

Congress agreed and divided the Commission in two. OPM would manage. The Merit Systems Protection Board would judge. Congress also wrote the separation into the statute itself. Under 5 U.S.C. § 7701(d)(1): "Nothing in this title shall be construed to permit the Office to interfere with the independent decisionmaking of the Merit Systems Protection Board."

That sentence is still on the books. Whether these rules can be squared with it is a question courts will likely be asked to answer.

What the New Process Takes Away

Reading the RIF appeals rule side by side with a Board appeal, three things are missing.

Discovery. The OPM process is record-based. There is no discovery and no subpoena power for appellants. OPM may request additional information, audit, investigate, or hold a hearing where it decides one is necessary — but that is OPM's call, not the employee's right.

A balanced clock. Under the RIF appeals rule, the agency gets 30 calendar days to respond to an appeal. The employee gets 15 calendar days to reply to whatever the agency filed.

Judicial review. The suitability rule says it in plain terms at 5 C.F.R. § 731.501(e): "A party may not obtain judicial review of an OPM decision issued under this subpart." The RIF appeals rule takes the same position, foreclosing further appeal from a final OPM decision.

OPM received 1,252 public comments on the RIF appeals proposal. By OPM's own account in the final rule, 99 percent opposed it. The rule was finalized anyway.

OPM Wrote Its Own Employees a Different Process

One detail in the RIF appeals rule is worth sitting with. When OPM's own employees appeal a RIF, the rule directs that an administrative law judge be assigned to adjudicate the appeal and issue an initial decision.

Everyone else gets a paper record.

The Cutoff Date Is Different for Each Program

This is the part that matters most this month, and it is the part most easily missed: the three rules do not share one trigger date.

• Suitability: appeals already filed with the MSPB before the effective date stay at the Board. Appeals filed on or after September 2 go to OPM. Your filing date controls.
• Reduction in force: the OPM process applies where the agency issued the specific RIF notice under 5 C.F.R. § 351.802 on or after September 2, 2026. Earlier RIF actions, including those already pending at the Board, stay with the Board. The notice date controls.
• Probationary and trial period: the rule reaches only actions effected on or after September 2, 2026, and it covers a narrow set of claims — alleged discrimination based on partisan political reasons or marital status, and certain procedural defects where the termination rested wholly or partly on pre-appointment reasons.

Three programs, three different clocks. If you are close to any of them, the difference between filing in August and filing in September may decide which forum hears you and whether a court can ever review the outcome.

What Federal Employees Should Do Now

If you have a suitability action pending or expected, find out today what your filing date is and what it needs to be. If you have received a RIF notice, note the date on the notice itself, not the date you learned about the RIF generally. If you are a probationer facing an action, note the effective date of the action.

Then talk to your union representative or a lawyer now — not in September, when the forum may already be settled.

Southworth PC represents federal employees, applicants, and probationers nationwide before the MSPB, EEOC, OSC, and FLRA. If you are trying to work out which process applies to you and what your deadline actually is, our federal employee lawyers can help you sort it out before the calendar makes the decision for you.

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation.