MSPB Ruling Means Probation Alone No Longer Secures Federal Jobs

A federal employee who finished a two-year trial period and got fired the next day has lost his appeal. On October 22, 2026, the Merit Systems Protection Board ruled in Laboy v. Department of Homeland Security (Docket No. DC-752P-26-0928-R-1) that his appointment had already expired automatically — he never acquired the civil service protections that normally follow completion of a service period.

The ruling hands the Trump administration a precedent with teeth: for employees covered by the new rules, simply completing probation no longer guarantees continued federal employment. Agencies now must affirmatively certify retention, and without that paperwork, the job ends on schedule.

What happened in the Laboy case?

Denyzio Laboy joined DHS on November 6, 2023, as an Equal Employment Specialist in the excepted service, with a two-year trial period. On November 6, 2025 — exactly two years in — DHS emailed him at 3:33 p.m. to say management wouldn't retain him, effective that day.

Laboy appealed, arguing he'd completed two years of continuous service and qualified for statutory adverse action protections under 5 U.S.C. § 7511. Those protections include advance written notice, a chance to respond and appeal rights. An administrative judge agreed and reversed the termination. The full Board overturned that ruling.

Why did the MSPB reverse the administrative judge?

The pivot point is Executive Order 14284, signed April 24, 2025. Titled Strengthening Probationary Periods in the Federal Service, it created Civil Service Rule XI.

Under 5 CFR § 11.5, an agency must affirmatively certify during the final 30 days of a probationary or trial period that finalizing the appointment advances the public interest. Without certification, the appointment expires automatically.

DHS never issued that certification, so the Board found Laboy's appointment expired at the end of his tour of duty on November 5, 2025. The termination notice the next day didn't create new employment. The Board acknowledged DHS failed to give required written notice, but said that failure didn't invalidate the automatic expiration. It noted Laboy worked at most one day past expiration, apparently due to an administrative error.

The most consequential language sits in footnote 12. There, the Board interpreted Rule XI as converting probationary and trial periods into the equivalent of term appointments, which expire unless the agency acts. A term appointment's expiration isn't an appealable removal under Chapter 75 — so the Board dismissed Laboy's appeal for lack of jurisdiction.

Did the MSPB uphold Trump's executive order?

The decision supports the administration's reading but doesn't settle the legality fight. Laboy challenged Rule XI under the Administrative Procedure Act, claiming the government skipped required notice-and-comment procedures. The Board said it lacked authority to invalidate the rule on APA grounds, citing Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012). It also found Laboy hadn't shown the President exceeded his statutory authority.

Federal courts can still review the rule or the Board's interpretation. One open question: how the President's appointment authority interacts with employment protections Congress created.

OPM's August 2026 final rule had already flagged why the administration moved — MSPB appeal costs, procedural complexity and litigation risk discouraged supervisors from using probationary periods at all, and training alone couldn't fix that.

What appeal rights do probationary employees have now?

A separate OPM final rule published August 3, 2026, effective September 2, 2026, shifts specified probationary appeals from the MSPB to OPM. The grounds are narrow:

• Discrimination based on partisan political reasons or marital status
• Specified procedural failures when termination rests on pre-appointment conditions

There's no ordinary appeal for disagreeing with a performance assessment or a retention decision. Most excepted service employees outside 5 CFR Part 307 get no appeal rights under this process unless another authority grants them. The rule doesn't apply retroactively to terminations before September 2, 2026 — including Laboy's — though discrimination and whistleblower remedies survive.

What should HR offices and employees do now?

Designated officials must meet employees at least 60 days before a probationary period ends, decide retention in the final 30 days and provide written certification before finalizing an appointment. A good performance appraisal isn't the same as certification. OPM directed agencies in August 2025 to assign higher-level officials, not immediate supervisors, to make retention calls, weighing performance, conduct, agency needs and government efficiency.

The trade-off is blunt: making certification essential raises the cost of paperwork errors. An agency could lose a capable employee because a document wasn't completed. A reinstatement mechanism exists for certain administrative mistakes, but it's not guaranteed. With Laboy on the books, agencies that don't formally document retention decisions will watch appointments expire on their own.