Suitability appeals leave the Merit Systems Protection Board for OPM, and the rule states that a party cannot obtain judicial review of the decision
The last line of the new appeal rules is about the courts.
The Office of Personnel Management filed a final rule on Friday morning that moves appeals of suitability actions out of the Merit Systems Protection Board and into OPM. It is the third such transfer filed in the same 8:45 a.m. batch, alongside the reduction in force appeals rule and the probationary appeals rule this site reported earlier. Revised section 731.501(e) makes the OPM process the sole route for a part 731 suitability appeal, expressly preserves matters that sit within the independent jurisdiction of the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, inspectors general, the board, the Labor Department's veterans employment service and the Office of Special Counsel, and then closes with a single sentence stating that a party cannot obtain judicial review of a decision under the subpart.
A suitability action is a defined and limited thing. Under 5 CFR 731.101(a) it means cancellation of eligibility, removal, cancellation of reinstatement eligibility, or debarment, taken because a person's character or conduct is found to bear on the integrity or the efficiency of the service. The rule reaches applicants, appointees and employees in the competitive service and the career Senior Executive Service. It does not create any appeal right for fitness determinations, security clearances, credentialing or national security eligibility, and it does not change the substantive suitability factors, which OPM addressed in a separate rulemaking published on 30 June.
Why OPM says it may do this
The argument is jurisdictional rather than political. OPM writes that the board is not a tribunal of general jurisdiction and hears only what statute, rule or regulation gives it, citing 5 U.S.C. 1204(a)(1) and 7701(a). Before this rule, it says, the board heard suitability appeals because OPM's own regulation at former section 731.501 put them there, a reading the Federal Circuit set out in Folio v. Department of Homeland Security in 2005. A regulatory forum choice, the preamble argues, does not become permanent by lasting a long time.
The statutory history runs through 2015. The Federal Circuit held in Archuleta v. Hopper that a suitability based removal was subject to chapter 75 adverse action procedures, and Congress responded later that year by adding subsection (F) to 5 U.S.C. 7512, excluding an OPM suitability action from chapter 75. OPM is careful to say it does not treat that provision as a source of substantive authority, only as confirmation that chapter 75 does not compel board review.
What the comments changed
Three hundred and forty-three comments arrived in the 30-day window, from individuals and from labour organisations, and OPM describes them as mixed. Several of them landed.
The final text allocates the burden of proof, which the proposal did not. An appellant must show timeliness, jurisdiction and any claim of improper procedure. The responsible agency must then prove the charges and the substantive propriety of the action, by a preponderance of the evidence. The final text also requires that agency to produce a complete, indexed, paginated and certified record, with charge by charge analysis, suitability factor analysis, mitigating or exculpatory evidence and the rationale for the action chosen, and it generally bars reliance on material the appellant never saw. Commenters had argued that removing board discovery without replacing it would leave an appellant unable to test a factual error or a pretext, and the record requirement is the answer OPM gives.
Written record review remains the default. A hearing is now required, rather than available at discretion, where the record cannot resolve a material fact, including where the dispute turns on the credibility of a witness, and an administrative judge must preside. Appeals brought by OPM's own applicants, appointees and employees go to an administrative law judge, and OPM will not disturb those initial decisions absent harmful procedural irregularity, clear legal error or a material factual error that affected the outcome.
Commenters also read the proposed protective order provision as a possible gag. The final version limits it to protecting the adjudicatory process against threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information and misuse of nonpublic material, and states that any order must be no broader than reasonably necessary and must not restrict lawful protected communications.
The money, and the deadline
OPM puts the rule at $4.7 million in annualised savings in 2024 dollars, discounted at 7 percent over a perpetual horizon. The working is shown: roughly $5.83 million a year in recurring savings and about $1 million of one-time implementation cost in fiscal 2026, converted to 2024 dollars, phased in at half in fiscal 2027 because pending board appeals are untouched, reaching the full amount from fiscal 2028. The Office of Information and Regulatory Affairs determined the rule is not major under the Congressional Review Act.
Thirty calendar days to file, from the effective date of the action, electronically, with the deadline at 11:59 p.m. Eastern on the thirtieth day. An applicant served a final notice by post gets ten days more. A late appeal is dismissed unless the appellant shows good cause, and the rule says that determination sits in the sole and exclusive discretion of OPM.
One commenter objected that a 30-day comment period was too short against the 60 days that Executive Orders 12866 and 13563 describe. OPM answers that those orders say generally, that courts have repeatedly held executive orders are not judicially enforceable, and that the 343 comments received are themselves evidence the window worked.
