§ 751.101 Right to appeal

5 CFR 751.101(a)(a) Right of appeal.

5 CFR 751.101(a)(1)(1) Subject to paragraphs (b) through (d) of this section, an employee may appeal the following actions to the Office of Personnel Management (OPM):

5 CFR 751.101(a)(1)(i)(i) Termination during a probationary or trial period required under 5 CFR part 11 or other authority administered by OPM;

5 CFR 751.101(a)(1)(ii)(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;

5 CFR 751.101(a)(1)(iii)(iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or

5 CFR 751.101(a)(1)(iv)(iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period.

5 CFR 751.101(a)(2)(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.

5 CFR 751.101(b)(b) Burden of proof. The employee (i.e., appellant) bears the burden to demonstrate, by a preponderance of the evidence:

5 CFR 751.101(b)(1)(1) The timeliness of the written appeal;

5 CFR 751.101(b)(2)(2) That OPM possesses jurisdiction over the appeal; and

5 CFR 751.101(b)(3)(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.

5 CFR 751.101(c)(c) Appealable issues—(1) Discrimination. An employee may appeal one of the following actions that he or she alleges was based on partisan political reasons or marital status:

5 CFR 751.101(i)(i) Termination not required by statute;

5 CFR 751.101(ii)(ii) Assignment to a nonsupervisory or nonmanagerial position under § 315.907 of this chapter;

5 CFR 751.101(iii)(iii) An agency's decision not to certify the continuation of the appointment of an employee serving a probationary or trial period; or

5 CFR 751.101(iv)(iv) An agency's failure to certify and finalize the appointment of an employee serving a probationary or trial period.

5 CFR 751.101(iv)(2)(2) Improper procedure. An employee whose termination is based in whole or in part on conditions arising before his or her appointment may appeal to OPM challenging that the agency failed to provide:

5 CFR 751.101(iv)(2)(i)(i) Advance written notice stating the reasons, specifically and in detail, for the proposed action;

5 CFR 751.101(iv)(2)(ii)(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

5 CFR 751.101(iv)(2)(iii)(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.

5 CFR 751.101(d)(d) Nonappealable issues. An employee may not appeal under this part any other issue not specified in paragraph (c) of this section.

5 CFR 751.101(e)(e) Exclusive appeal procedure. The procedures in this part are the sole means of appealing a covered action under paragraph (a) of this section, but do not otherwise preclude an employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, an Inspector General, the Merit Systems Protection Board, the Department of Labor Veterans' Employment and Training Service, or the Office of Special Counsel. A party cannot obtain judicial review of a decision under this part.

5 CFR 751.101(f)(f) Definition of employee. For purposes of this part, an employee means an individual appointed:

5 CFR 751.101(f)(1)(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;

5 CFR 751.101(f)(2)(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;

5 CFR 751.101(f)(3)(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

5 CFR 751.101(f)(4)(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.