The rule replaces the Merit Systems Protection Board with an OPM-administered appeal process for suitability actions taken under 5 CFR Part 731. It sets out who may appeal, what issues may be raised, and how OPM decides appeals.

The rule applies to appeals filed on or after the effective date (30 days after publication in the Federal Register). Appeals filed with the MSPB before that date remain with the MSPB under the prior rules.

Applicants, appointees, and employees in the competitive service or career Senior Executive Service (SES), as those terms are used in 5 CFR Part 731, may appeal a suitability action taken against the individual because of an unfavorable suitability determination under Subpart E.

A person may appeal to OPM when an agency finds the person unsuitable and takes one of the following actions: cancels the person’s eligibility, removes the person, cancels reinstatement eligibility, or imposes a debarment. The person may challenge the reasons for the finding, whether those reasons support the action taken, and whether the agency provided the procedural protections required by the rule.

Fitness, security clearance, credentialing, and national-security eligibility determinations are not appealable under Subpart E, nor is any determination outside its scope that did not result in a suitability action is likewise not appealable.

Agencies should keep a complete record supporting each unfavorable suitability determination and resulting action so the record can be provided to OPM if the action is appealed. The record should include, as applicable, documents concerning the individual’s application, appointment, position, or status; investigative and adjudicative materials; the charges and suitability factor analysis; mitigating or contrary evidence; the individual’s response; notices and decision letters; proof of service; and documents implementing the action.

When an appeal is filed, the responsible agency must produce a complete, indexed, paginated, and certified administrative record. The record must include: all materials considered, relied upon, generated, received, issued, or served in investigating, proposing, deciding, directing, or effectuating the action; a charge-by-charge analysis; a suitability-factor analysis; any mitigating or exculpatory evidence; the rationale for the action selected; and implementation documents. Withheld, redacted, or protectively handled documents must be identified in an index or privilege log, unless prohibited by law. The responsible agency must serve the record on the appellant.

Failure to produce a complete, indexed, paginated, and certified record may affect OPM’s ability to rely on material in the record. OPM generally may not rely on material that was not disclosed to the appellant unless the appellant receives notice of its substance and a meaningful opportunity to respond.

Appeals must be filed through OPM’s electronic filing system at https://opmefile.opm.gov. OPM may exempt a party or representative for good cause.

The appellant bears the burden of establishing that the appeal is timely filed. An appeal must be filed within 30 calendar days after the effective date of the suitability action and is timely if electronically filed by 11:59 P.M. Eastern Time on the 30th calendar day. A late appeal may be dismissed unless the appellant demonstrates good cause for the delay.

An appeal should identify the suitability action being challenged, explain why the action is subject to appeal under Subpart E, and include supporting documentation. An appeal that fails to satisfy these requirements may be subject to a show-cause order or other appropriate action.

Yes. An appellant may select a representative, identified to OPM, consistent with 5 CFR § 731.506.

Appeals are generally decided on the developed written record: the agency’s administrative record, the appellant’s submissions, and any material information developed during the proceeding. An initial decision must make findings on each material charge, specification, and suitability factor relied upon to support the action; review whether the sustained grounds support the action imposed if fewer than all charges or specifications are sustained; and, if the appellant prevails, order appropriate corrective relief authorized by law. The initial decision may affirm, reverse, modify vacate, or remand the unfavorable suitability determination and resulting suitability action, in whole or in part.

There is no automatic discovery. There is no hearing as of right; a hearing is required when there is a material credibility dispute that cannot be resolved on the written record. Hearings are presided over by an administrative judge and limited to the material factually necessary to resolve the appeal. OPM may develop facts further only when the record is insufficient on a material issue and more development is reasonably likely to produce material information.

The standard is preponderance of the evidence. The appellant bears the burden of establishing timeliness, jurisdiction, and any claim of improper procedure. The responsible agency bears the burden on the charges and the propriety of the action taken.

OPM may affirm, reverse, modify, vacate, or remand the unfavorable suitability determination and resulting suitability action, in whole or in part and, if the appellant prevails, must order appropriate relief authorized by law. Where applicable and legally authorized, corrective relief may include back pay, interest, and reasonable attorney fees consistent with 5 CFR part 550, subpart H. If the responsible agency prevails on the merits, OPM may affirm the suitability action.

Yes. Subpart E is the sole means of appealing a Part 731 suitability action, but it does not preclude an appellant from filing claims with the EEOC, the FLRA, Inspectors General, the MSPB (for matters within its independent jurisdiction), DOL VETS, or the OSC.

Either party may request reconsideration of an initial decision based on new and material evidence, clear legal error, or other qualifying grounds. The OPM Director may reopen and reconsider a decision on the Director’s own initiative before it becomes final; parties may not request Director review. The regulation specifies when decisions become final. Final merits decisions or de-identified summaries are published consistent with 5 CFR § 731.509.