WASHINGTON, D.C. (Law.com) — The Trump administration is seeking to implement a rule change that would limit the due process rights of first-year federal employees who file administrative claims alleging discrimination based on partisan political reasons or marital status.
Employment attorneys say the U.S. Office of Personnel Management’s proposed rule would divest the Merit Systems Protection Board of jurisdiction to hear appeals from fired probationary employees and would create an OPM adjudicative process that amounts to a “kangaroo court.”
“They don’t like the [MSPB] because it is far more fair to employees, and they don’t want due process,” John P. Mahoney, whose namesake law firm specializes in federal employment law, said Monday of the Trump administration. “They want a quick basis for immediate termination for those they don’t approve of.”
The proposed rule would give President Donald Trump’s OPM Director Scott Kupor “carte balance authority” to reopen and reconsider any appeal heard by an OPM adjudicator who supplants the MSPB’s current jurisdiction over such matters, Mahoney added.
Trump signed Executive Order 14284 last April requiring OPM’s director to publish a new rule that would nix the MSPB’s regulatory authority to review appeals from probationary workers who allege discrimination based on partisan political affiliation or marital status.
Federal agencies fired thousands of probationary employees in the early days of Trump’s second term, sparking legal challenges. A California federal judge ordered six U.S. agencies to reinstate about 16,000 probationary workers, but the U.S. Supreme Court paused that order from taking effect last spring.
Members of the public have until Jan. 29 to comment on OPM’s proposed rule for streamlining probationary and trial period appeals before the agency can adopt the proposal. The government published the proposal on Dec. 30, 2025, and most of the public comments to date have voiced concerns.
Michael Fallings, managing partner at Tully Rinckey, said the OPM’s proposed rule would likely face legal challenges if the agency adopted the proposal as written.
“There is really no due process, there’s no discovery, there’s no hearing process,” Fallings said Monday of the proposed OPM rule. “I do see it being adopted by the administration, and I see [legal] challenges, given there have been challenges to most rule changes.”
The proposed rule would still allow probationary federal employees to file discrimination claims with the Equal Employment Opportunity Commission.
“The biggest change here … is taking away MSPB rights,” Eric Pines of Pines Federal Employment Attorneys said Monday in an interview about OPM’s proposed rule. “It is another example of rights being taken away from federal employees.”
Federal agencies and department heads under the proposed rule would be able to fire probationary workers in the “easiest way possible with the least resistance possible,” Pines said.
The proposed rule would create an OPM adjudicative process for probationary employees who allege discrimination based on partisan political affiliation or marital status and eliminate their access to the MSPB.
Regardless of what an OPM adjudicator decides, “The OPM director sua sponte can overturn the response of the adjudicator, which makes the whole process illusory from my perspective,” Mahoney told Law.com and the National Law Journal. “It is kind of a kangaroo court from that perspective.”
