Proposed Rule2026-02449
Suitability Action Appeals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 6, 2026
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing amendments to the review process for suitability actions. The purpose of the proposed rule is to streamline suitability action appeals procedures, thereby improving the efficiency, rigor and timeliness by which OPM and agencies resolve challenges to suitability actions and ensure the integrity and efficiency of the service.
Full Text
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[Federal Register Volume 91, Number 25 (Friday, February 6, 2026)]
[Proposed Rules]
[Pages 5352-5365]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02449]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 25 / Friday, February 6, 2026 /
Proposed Rules
[[Page 5352]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AO97
Suitability Action Appeals
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
amendments to the review process for suitability actions. The purpose
of the proposed rule is to streamline suitability action appeals
procedures, thereby improving the efficiency, rigor and timeliness by
which OPM and agencies resolve challenges to suitability actions and
ensure the integrity and efficiency of the service.
DATES: Comments must be received on or before March 9, 2026.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All submissions received must
include the agency name and docket number or Regulation Identifier
Number (RIN).
Where possible, please arrange and identify your comments on the
regulatory text by subpart and section number; if your comments relate
to the supplementary information, please refer to the heading and page
number. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. If you cannot submit comments
electronically, please contact the individual listed in the further
information section.
The general policy for comments and other submissions from members
of the public is to make these submissions available for public viewing
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change, including any personal
identifiers or contact information.
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be
found in the docket for this rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For questions, contact Mr. Joe Knouff,
Suitability Executive Agent Programs, by email at <a href="/cdn-cgi/l/email-protection#87d4f2eef3c2c6c7e8f7eaa9e0e8f1"><span class="__cf_email__" data-cfemail="ecbf998598a9adac839c81c28b839a">[email protected]</span></a> or by
phone at (202) 599-0090.
SUPPLEMENTARY INFORMATION:
Authority and Background
Congress has long granted the President authority to ensure that
those employed in the competitive service \1\ or career appointments to
the Senior Executive Service (SES) are suitable for Federal employment.
When OPM or an agency with delegated authority determines an individual
is not suitable for employment in the competitive service or career
SES, OPM or the agency takes a suitability action to protect the
integrity or promote the efficiency of the service. The suitability
standards and procedures are implemented under the authority of 5
U.S.C. 3301, 3302, and 7301. Historically, the President delegated to
OPM and its predecessor, the Civil Service Commission, the authority to
prescribe both qualification standards and suitability standards, and
to conduct both examinations of applicants' qualifications and
investigations of their suitability for appointment and continuing
employment. See 5 U.S.C. 1104(a)(1). These standards and procedures are
implemented through OPM's regulations at Title 5, Code of Federal
Regulations part 731 (5 CFR part 731), which include procedures
governing suitability actions and the general process for appealing a
suitability action.
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\1\ For the purposes of the Suitability and Fitness regulation
at 5 CFR part 731, ``competitive service or career SES refers to a
position in the competitive service, a position in the excepted
service where the incumbent can be noncompetitively converted to the
competitive service, and a career appointment to a position in the
SES. See 5 CFR 731.101(a).
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Suitability standards and procedures play a key role in protecting
the Federal government against potential risks posed by those entrusted
to work for it. Every day, America's adversaries seek to undermine the
effective performance of government functions and the confidentiality
of sensitive government information. Employees who are untrustworthy or
unvetted pose a threat to the effective performance of agency missions,
workplace safety, and data security. Successive presidential
administrations spanning almost 20 years have emphasized the importance
of enhanced risk management of the Federal government's trusted
workforce through efforts at modernizing processes to ensure only
trusted individuals enter and remain in the Federal workforce. In May
2018, the OPM Director and the Director of National Intelligence, in
their respective roles as Suitability and Credentialing Executive Agent
and Security Executive Agent, launched the Trusted Workforce 2.0
initiative, a key goal of which is to provide vetting processes that
enable the government to continuously vet the Federal workforce to
ensure they remain suitable or fit for service over time. The Trusted
Workforce 2.0 initiative recognizes that as the technologies and
tactics used by America's adversaries evolve, so must the government's
approach to ensuring its workforce remains trusted. Modernizing
suitability procedures that allow the government to quickly resolve any
risks discovered in the Federal workforce is crucial to supporting this
long-standing goal to better protect the Federal government's critical
missions.
Suitability and fitness determinations examine ``character or
conduct that may have an adverse impact on the integrity or efficiency
of the service,'' such as criminal or dishonest conduct, and deception
or fraud in examination or appointment. 5 CFR 731.101, 731.201,
731.202. The objective of the suitability and fitness adjudicator is to
establish a reasonable expectation that employment or continued
employment of an individual either would or would not protect the
integrity or promote the efficiency of the service. 5 CFR 731.201. When
there is evidence that the individual's employment would not protect
the integrity or promote the efficiency of the service, the individual
may be found unsuitable or unfit. If the suitability determination is
unfavorable, the adjudicator must then determine what ``suitability
action'' is appropriate. See Sec. 731.203(a). OPM's regulations define
a ``suitability action'' to include ``[c]ancellation of eligibility,''
``[r]emoval,'' ``[c]ancellation of reinstatement eligibility,'' and
``[d]ebarment.'' See Sec. 731.101(a).
[[Page 5353]]
This rule proposes to return the venue to hear suitability action
appeals from the Merit System Protection Board (MSPB) to OPM, thereby
honoring congressional intent and streamlining the suitability action
and appeals process in a manner that results in savings to agency
operational costs and the American public, while also providing due
process and more expeditiously arriving at resolutions that protect the
integrity and promote the efficiency of the service. OPM is proposing
to no longer permit individuals in any status, whether an applicant,
appointee, or employee, as those terms are defined in 5 CFR 731.101(a),
to appeal suitability actions to the MSPB. At the same time, OPM
proposes to introduce new procedures by which an individual may appeal
a suitability action to OPM.
OPM recently proposed separate changes to subparts A, B, C, and D
of 5 CFR part 731. See 90 FR 23467 (June 3, 2025). The proposed changes
in this present rulemaking are limited to subpart E of this part and
are separate and distinct from the changes proposed in the June 2025
Suitability and Fitness Notice of Proposed Rulemaking (June NPRM) at 90
FR 23467. The June NPRM addresses updates to the specific factors used
to evaluate an individual's suitability or fitness for Federal service,
as directed by E.O. 14210 of February 11, 2025, Implementing the
President's ``Department of Government Efficiency'' Workforce
Optimization Initiative, (see 90 FR 9669, Feb. 14, 2025) and OPM's and
agencies' delegated authority to take suitability actions based on
post-appointment conduct as directed by Presidential Memorandum on
March 20, 2025, Strengthening the Suitability and Fitness of the
Federal Workforce, (see 90 FR 13683, Mar. 25, 2025). This present rule
is limited to appeals of suitability actions. The appeal processes
proposed in this rule would operate independently of the changes
proposed in the June NPRM and could serve in an appeal of a suitability
action irrespective of how OPM ultimately completes the June NPRM.
In proposing to discontinue MSPB appeals for suitability actions,
OPM has considered that judicial and legislative history demonstrates
clear congressional intent to exclude suitability actions from standard
civil service Chapter 75 procedures--including MSPB appeals. In the
early 2010s, two decisions involving individuals in the competitive
service limited agencies' ability to mitigate risk through suitability
actions by forcing actions based on post-appointment conduct to proceed
through Chapter 75 procedures. First, in 2011 the MSPB decided in Scott
v. OPM (116 M.S.P.R. 356 (2011), modified by 117 M.S.P.R. 467 (2012))
that suitability actions could not be taken for post-appointment
conduct. Then, in 2015, the Federal Circuit held in Archuleta v. Hopper
(786 F.3d 1340 (Fed. Cir. 2015)) suitability-based removals were
subject to Chapter 75 adverse action procedures. Congress almost
immediately repudiated this interpretation of Chapter 75 by the courts
and clarified that suitability authority is separate and distinct from
Chapter 75 removal authority. Specifically, in 2015, Congress added 5
U.S.C. 7512(F) to clarify that ``a suitability action taken by the
Office under regulations prescribed by the Office, subject to the rules
prescribed by the President under this title for the administration of
the competitive service'' \2\ is not within the scope of Chapter 75
(and thus statutory MSPB jurisdiction). This clarifying addition was
part of a larger package of reforms in the Fiscal Year 2015 National
Defense Authorization Act (FY 2015 NDAA) designed to improve the speed
and effectiveness of government personnel security, suitability, and
credentialing reviews. These reforms were heavily influenced by
Congress' response to tragic, potentially avoidable events had the
government had more robust personnel vetting processes. Following the
Washington Navy Yard shooting in September 2013, which saw 12
individuals lose their lives, Congress held hearings examining
necessary improvements to vetting processes highlighted by this event
and other high-profile leaks of information (e.g., Wikileaks), and
crafted legislation to improve the government's ability to protect
against risk posed by trusted insiders. For example, the same section
of the FY 2015 NDAA that added language to clarify that suitability
actions were not within the scope of Chapter 75 also directed action to
develop strategies and capabilities to enable real-time, risk managed
personnel vetting decisions, increase access to criminal history
information when determining an individual's suitability or fitness for
employment, and improve insider threat detection and prevention. In
passing this amendment, Congress improved the Government's ability to
mitigate risk by rectifying a situation created by the courts, which
had subjected suitability actions to the process dictated by Chapter
75. The FY 2015 NDAA returned the ability for suitability actions to
follow a more streamlined process than Chapter 75.
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\2\ National Defense Authorization Act (NDAA) for Fiscal Year
2016, Public Law 11492, div. A, title X, Sec. 1086(f)(9), Nov. 25,
2015, 129 Stat. 1010.
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MSPB has nonetheless continued to exercise jurisdiction over
suitability appeals, as OPM's regulations in 5 CFR part 731, subpart E,
authorize MSPB appeals of suitability actions. These regulations pre-
date the FY 2015 NDAA amendments clarifying that suitability actions
are not subject to Chapter 75 requirements. Under 5 U.S.C. 1204(a) the
MSPB can adjudicate matters that are placed within its jurisdiction by
any law, rule, or regulation. So, while the law does not require that
MSPB hear appeals of suitability actions, OPM regulations continue to
do so.
Removing MSPB appeals of suitability actions from OPM's regulations
would remove the MSPB's jurisdiction to hear such appeals. Individuals
against whom suitability actions are proposed will continue to be able
to rely on the procedural protections OPM provides in its suitability
regulations at 5 CFR part 731, subparts C and D. When OPM or an agency
makes an unfavorable suitability determination and takes a suitability
action, individuals would have further protections in the form of an
appeal to OPM provided in the proposed revisions to subpart E,
described below. Accordingly, suitability actions that remove an
appointee or employee will not constitute at-will dismissal.
OPM has also considered that MSPB procedures add considerable
complexity and delay arriving at a final resolution for both appellants
and agencies. When appealing to the MSPB, employees have a statutory
right to a hearing when the matter is within its jurisdiction.\3\ And
before reaching a hearing, MSPB regulations allow the parties to engage
in discovery.\4\ On top of these procedures, the MSPB process includes
multiple levels of appeal. An employee or applicant can appeal an
administrative judge's initial ruling to the full MSPB, and then to the
U.S. Court of Appeals for the Federal Circuit. See 5 CFR part 1201.
This process of successive, duplicative appeals can take years, wasting
valuable time and resources.
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\3\ 5 U.S.C. 7701(a).
\4\ 5 CFR 1201.71-1201.75.
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OPM believes that removing suitability appeals from MSPB will
result in faster resolution for individuals and agencies. In MSPB's
Annual Performance Reports for Fiscal Years (FY) 2022 through 2024,\5\
the average
[[Page 5354]]
case processing time for initial appeals alone is 109 days. This does
not include situations where additional time is needed for a decision
by the Board is required to provide resolution, discussed below. It
should also be noted that during this time period when MSPB averaged
109 days to process initial appeals, 69% of all appeals filed were
dismissed, and of those remaining appeals not dismissed, 57% ended in
settlement. During this same period, the MSPB decided an average of
4,186 cases per year, where suitability appeals represented an average
of only 1.2% of all cases. Although only a small fraction of the total
cases, suitability appeals are blended with the overall workload of the
MSPB, which subjects these appeals to the same processing timelines as
all other case types. By removing suitability appeals from MSPB, these
suitability appeals would reach resolution more quickly because OPM's
suitability office would have no other types of appeals to process and
compete for attention.
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\5\ MSPB's Annual Reports can be found on MSPB's website at
<a href="https://www.mspb.gov/about/annualreport_archive.htm">https://www.mspb.gov/about/annualreport_archive.htm</a>.
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OPM has also considered the negative impact MSPB's recent history
of a lack of quorum has on providing individuals and agencies with
prompt resolution of appeals. Between January 7, 2017, and March 3,
2022, and for the better part of 2025, MSPB lacked a quorum, which
prevented it from reviewing cases and resulted in a considerable
backlog.\6\ During the 2017 to 2022 period when MSPB lacked a quorum,
OPM had 14 appeals of its suitability actions impacted, where the
individuals and agencies involved in the actions waited an average of 5
years and 7 months between the time OPM took its suitability action and
the date the Board rendered a decision. This situation leaves
individuals and agencies in limbo for far too long. MSPB itself cannot
rectify this recurring problem, as the cause of the lack of a quorum
stems from the Senate's failure to confirm nominees to the MSPB in a
timely manner. The executive branch lacks any meaningful control over
this process, and therefore prudent governance requires the executive
to minimize disruption to personnel operations caused by loss of a
quorum at MSPB. Moving appeals of suitability actions from MSPB to OPM
will ensure the executive branch retains control and flexibility to
allocate resources to avoid extensive delays or backlogs that would
deprive individuals and agencies of timely resolution. It also
leverages OPM's expertise in promulgating and interpreting suitability
regulations as well as its expertise in adjudicating suitability
matters. Housing suitability action appeals within the agency with
historical expertise in suitability matters will promote consistency,
efficiency, and regularity of decision-making regarding suitability
action appeals. While individuals may lack some procedural mechanisms
if appeals are transferred to OPM as proposed in this rule, OPM
believes streamlining the process will not have a consequential impact
upon the substantive outcomes of the appeals, while improving the
efficiency and consistency of the process.
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\6\ 1 U.S. Merit Sys. Prot. Bd., ``Frequently Asked Questions
about the Lack of Quorum Period and Restoration of the Full Board''
(Apr. 9, 2025), <a href="https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_4-9-25.pdf">https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_4-9-25.pdf</a>.
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In proposing to remove competitive service and career SES
suitability appeals from MSPB, OPM also considered that it is possible
that the complexity, time, and cost of defending suitability actions at
MSPB coupled with the high rate of settlements that result from such
appeals may discourage agencies from pursuing suitability actions to
mitigate risk when an action is warranted. From FY 2018 through
2024,\7\ 71% of MSPB appeals of suitability actions that were not
initially dismissed resulted in a settlement. In the context of a
suitability appeal, all settlements result in a reduction of penalties
and almost always involve reducing the period of debarment. The high
rate of settlements has at least two potential consequences. First, the
debarment period set in a suitability action serves the purpose of both
protecting the integrity and efficiency of the service and affording a
sufficient period for the debarred individual to demonstrate
rehabilitation. Shortening this period exposes the government to
increased risk and also allows individuals to re-enter Federal service
before sufficient time has passed to allow for them to demonstrate
rehabilitation. Second, the resulting reduction in penalties may
further discourage agencies from viewing the effort in taking an action
as a worthwhile endeavor.
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\7\ MSPB's Annual Reports for FY 2018 through FY 2024 can be
found on MSPB's website at <a href="https://www.mspb.gov/about/annualreport_archive.htm">https://www.mspb.gov/about/annualreport_archive.htm</a>.
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Although OPM is proposing to remove the availability of an appeal
of a suitability action to the MSPB, OPM does not propose in this rule
to change any of the suitability actions procedures. Those procedures
include the following elements, which are also unchanged by the
proposals in the June NPRM: written, advanced notice outlining the
charges, an opportunity for the respondent to review the materials
relied upon in proposing the action, an opportunity for the individual
to respond in writing and provide written evidence, and the opportunity
for the respondent to be represented by a representative of the
respondent's choice.
OPM's recognition that providing a regulatory right to appeal
suitability actions to the MSPB creates inefficiencies and makes
agencies less likely to take a suitability action even when such an
action is warranted is not new. In April 1991, OPM established an OPM
Review Panel (the Review Panel) as a venue to offer individuals an
opportunity for an independent review of an unfavorable suitability
determination. 56 FR 18650 (April 23, 1991). OPM had hoped that the
creation of the Review Panel would afford individuals an appropriate
level of protection in response to unfavorable suitability
determinations and actions while also decreasing costs, providing
appellants with a streamlined resolution to their cases, and cutting
down on the number of appeals taken in suitability cases to the MSPB.
OPM did not, however, remove the regulatory right for appeal to the
MSPB from 5 CFR part 731. In the April 1991 interim regulation, OPM
also took away agencies' prior option to determine whether to suspend
individuals or retain them in a pay status pending adjudication of
their appeals to the MSPB. OPM required agencies to retain individuals
in a pay status pending the decision of the Review Panel. Agencies
could only execute a 5 CFR part 731 removal action after the Review
Panel affirmed an agency decision.
In September 1994, OPM abolished the Review Panel. 94 FR 22918
(September 16, 1994). While the Review Panel effectively provided
independent suitability determination reviews, its implementation did
not achieve the goals that motivated its creation. Experience showed
that many appellants to the Review Panel still proceeded with appeals
to the MSPB after the Review Panel's review and decision. OPM now
recognizes that streamlining the resolution of suitability
determinations requires eliminating MSPB review, not simply providing
for separate OPM review.
Based on the inefficiency of allowing suitability appeals to be
heard by the MSPB and lessons learned in OPM's prior Review Panel, OPM
is proposing to introduce an OPM appeal process to replace the MSPB
appeal process for both OPM and agency suitability actions. The OPM
appeal process will provide individuals an opportunity for an
independent review in a manner that
[[Page 5355]]
values protections for individuals subject to unfavorable suitability
determinations alongside the need to employ efficient and effective
processes to ensure applicants, appointees, and employees are suitable
for employment and that their conduct protects the integrity and
promotes the efficiency of the service. Today, OPM's suitability
functions take place in an Office that is split into two separate
program areas. This structure ensures that today, suitability
adjudicative staff involved in making suitability determinations and
taking suitability actions are kept separate and distinct from another
group of senior suitability adjudicative staff responsible for
supporting OPM on appeals of suitability actions to the MSPB, with both
sides reporting through separate supervisory chains of command. Under
the proposed OPM appeal process, OPM will retain this structure to
maintain decisional and supervisory independence between staff that
make suitability determinations and take suitability actions from those
that decide appeals of suitability determinations and actions.
In removing the right to appeal to MSPB currently provided in
subpart E, OPM is proposing to revise subpart E to establish the
following appeal procedures:
<bullet> Individuals applying to or occupying competitive service
or career Senior Executive Service positions who have been found
unsuitable by an agency, to include OPM when acting as an agency, and
have been subject to a suitability action may file an appeal with OPM
and may present evidence and supporting documentation as to why they
believe the underlying determination of unsuitability was incorrect.
Individuals will have the right to represent themselves or designate a
representative.
<bullet> Appeal requests will be adjudicated by OPM personnel who
have received training that complies with national training standards
for suitability adjudicators. This training will ensure that those
entrusted with adjudicating appeals are qualified to review agency
suitability determinations and actions.
<bullet> In conducting its review of an agency determination and
action, OPM will review the written record of the case, the agency
decision, and the request for review. OPM will affirm the agency's
decision if the action, findings, and conclusions are supported by a
preponderance of the evidence, where preponderance of the evidence
means evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that the agency's conclusions
are more likely to be true than untrue.
<bullet> When OPM determines the written record is insufficiently
developed to decide the appeal due to disputes involving one or more
material facts, OPM will: (1) hold a hearing to evaluate witness
credibility to resolve any issue(s) of material fact, (2) conduct an
additional investigation, or 3) reverse or vacate the responsible
agency's decision, in whole or in part.
<bullet> At the conclusion of its review, OPM will prepare a
written initial decision affirming, reversing, or affirming with
modifications an agency's decision.
<bullet> Upon request from either party to the dispute, OPM may
reopen and reconsider at its discretion an initial decision.
<bullet> There would be no further administrative review or appeal
from OPM's final decision.
Under the proposed suitability action appeal procedures, OPM will
only review the underlying determination that the individual is
unsuitable for Federal employment. The review will focus on the
evidence in the record and whether it supports a finding that the
individual's conduct demonstrates his or her employment would not
protect the integrity or promote the efficiency of the service.
Individuals who believe that they have been discriminated against or
subjected to a prohibited personnel practice could raise these
arguments and present evidence insomuch as it is relevant to the
suitability determination; however, the submission and consideration of
any such arguments or evidence would not be considered a legal claim
for redress by OPM, and any decision by OPM would be limited to the
suitability determination. OPM's decision would not constitute a
decision on presence or absence of discrimination or a prohibited
personnel practice. Individuals would need to pursue such legal claims
in accordance with statutes and regulations governing such claims, for
instance following the procedures for filing a claim of discrimination
under Equal Employment Opportunity Commission (EEOC) regulations. The
EEOC's mixed cases regulation at 29 CFR 1614.302 would not apply. While
OPM is best positioned to review suitability determinations and
actions, these other entities have experience and regulatory authority
to review claims that an agency action was based on underlying
discrimination or another prohibited personnel practice.
Section-by-Section Analysis
Subpart E--Suitability Action Appeals
OPM is proposing to revise subpart E in its entirety. Subpart E
would be renamed Suitability Action Appeals. As discussed above, OPM's
purpose in proposing these changes is to streamline, and thereby speed
up, the final decision-making process; and, to that end, OPM's proposed
amendments would no longer permit individuals to appeal suitability
actions to the MSPB. As is the case today, either at OPM or an agency,
suitability determinations and actions will be proposed by a
suitability adjudicator, individuals will have an opportunity to
respond, and, after the opportunity to respond, a separate suitability
adjudicator who was not involved previously in the decision to propose
the action will make the decision. Permitting an appeal to MSPB--where
actions follow complex litigation practices and those that are not
dismissed most often end in settlements and where the recent history of
extended periods with a lack of a quorum causes extensive delays and
prevents timely resolution of appeals--is ineffective at protecting the
integrity and promoting the efficiency of the service through
suitability actions. At the same time, to provide individuals with the
protection of a secondary independent review, OPM proposes to institute
an OPM suitability action appeals process to allow individuals to
request a review of an agency's unfavorable suitability determination.
This would include OPM determinations when OPM is acting as an agency.
It would also include, if the June NPRM is finalized as proposed, OPM
determinations made in suitability actions against employees based on
post-appointment conduct. Throughout the following analysis, the term
``agency'' refers to both OPM suitability determinations and actions
and those by other agencies.
731.501 Right To Appeal
OPM is proposing to establish an OPM suitability action appeals
process. Individuals against whom an agency has taken a suitability
action may appeal to OPM and request that OPM review the agency
determination that an individual is unsuitable for employment in the
competitive service or career Senior Executive Service. Under the
proposed procedures, an applicant, appointee, or employee in the
competitive service or career Senior Executive Service who has been
subject to a suitability action may appeal an agency's underlying
decision that he or she is unsuitable for Federal employment based on
the specific
[[Page 5356]]
factors found at 5 CFR 731.202(b). OPM proposes that an individual may
also file an appeal when challenging whether an agency followed proper
suitability action procedures as outlined in subparts C and D of part
731. OPM proposes that unfavorable suitability determinations that do
not result in a suitability action as defined at 5 CFR 731.101(b)
cannot be appealed under this subpart. OPM proposes to make the appeal
procedures in this subpart the sole and exclusive means of appealing
suitability actions. These procedures would not, however, preclude an
individual filing an administrative complaint, appeal, or other matter
within another forum, as applicable (e.g., claims of discrimination or
a prohibited personnel practice).
731.502 Procedures for Submitting Appeals
OPM proposes to require individuals who wish to file an appeal to
do so using OPM's electronic filing system within 30 calendar days of
the effective date of the suitability action. OPM anticipates that it
will have an e-filing system in place prior to the effective date of a
final rule. OPM would not review untimely requests unless the
individual demonstrates good cause for the untimely filing. The
appellant would bear the burden of proof to demonstrate that an appeal
filing is timely as well as demonstrating that the action taken against
the individual falls within OPM's jurisdiction under this part. In
evaluating whether an appellant has demonstrated good cause for an
untimely filing of the appeal, OPM will apply the approach taken by the
Merit Systems Protection Board in Alonzo v. Department of the Air
Force, 4 MSPB 262, 4 M.S.P.R. 180 (1980). In Alonzo, the Board
established a non-exhaustive set of factors for determining whether an
employee establishes good cause for the untimely filing of an appeal.
These factors will allow OPM to consider a variety of circumstances
using well-established law.
731.503 Form and Content of Suitability Action Appeals and Agency
Response
OPM proposes requiring an appellant to provide identifying
information and a statement of the basis of the appeal, along with any
supporting documentation the appellant deems relevant to the review.
When an appellant files a timely appeal, OPM proposes that the agency
that took the suitability action must submit the agency's response
within 30 calendar days. OPM proposes allowing an appellant to file a
reply to an agency response, but the reply would be limited to
addressing only the factual and legal issues raised by the agency in
response to the initial appeal.
731.504 Appellant Representatives
OPM proposes individuals may represent themselves or designate a
representative, provided that, if the representative is a Federal
employee, he or she may not perform such representational functions
while in a duty status (including while on official time under 5 U.S.C.
7131), and also may not claim agency reimbursement for any expenses
incurred while performing such representational functions.
Additionally, OPM proposes that OPM may, in its sole and exclusive
discretion, disallow an appellant's choice of a representative if the
representative is an employee of the agency or OPM and that employee's
representation would result in a conflict of interest or position; that
employee cannot be released from his or her official duties because of
the priority business needs of the agency; or it would give rise to
unreasonable costs to the Government.
731.505 Adjudication of Appeals
OPM proposes to introduce protections to ensure that OPM personnel
assigned to adjudicate appeals are free from conflicts of interest. As
discussed in the Authority and Background section, the OPM staff taking
suitability actions will be kept in a separate work unit and report
through a different supervisory chain than those employees responsible
for processing and deciding appeals. OPM also proposes to require all
personnel adjudicating appeals to have received training that complies
with national training standards for suitability adjudicators.
Requiring this training will ensure those adjudicating appeals are
qualified to review OPM and agency suitability determinations and
actions. OPM proposes that, in applying a standard of review, it will
affirm the agency's decision if the action, findings, and conclusions
are supported by a preponderance of the evidence. OPM proposes that
when it determines the written record is insufficiently developed to
decide the appeal due to disputes involving one or more material facts,
OPM will: (1) hold a hearing to evaluate witness credibility to resolve
any issues of material fact, (2) conduct an additional investigation,
or (3) reverse or vacate the responsible agency's decision, in whole or
in part.
OPM proposes that appellants will receive relief including any back
pay, interest, and reasonable attorney fees consistent with subpart H
of part 550 of this chapter when the appellant is the prevailing party.
See 5 CFR 550 subpart H. OPM proposes that, when the appellant is the
prevailing party, an agency's request for reopening and reconsideration
of OPM's initial decision will not stay any requirement to provide
relief unless OPM issues a specific order staying such relief. However,
when the relief includes payment of back pay, interest, or attorney
fees, those payments are not payable until the decision is a final
decision in accordance with Sec. 731.509.
731.506 Sanctions and Protective Orders
OPM proposes to prevent harassing communications by the parties via
a cease-and-desist directive and penalties for failing to follow a
directive from OPM. Specifically, the proposed language would authorize
OPM to direct any party to cease-and-desist harassing communications,
or communications which could reasonably be foreseen to lead to
harassment, with or about any individual. This authority is proposed to
be exercised sua sponte or at the request of a party. The section
further proposes to provide several penalties upon a party failing to
comply with such a directive, including drawing all inferences against
the noncompliant party, prohibiting the noncompliant party from
introducing evidence, or eliminating consideration of any filings or
submissions of the noncompliant party.
MSPB procedures, while providing for protective orders, are
inadequate to protect Federal employees from threats and harassment.
While MSPB permits a party to petition the board for a protective
order, it cannot, sua sponte, bind a party to a protective order
without a motion. Instead, MSPB relies primarily on mutual consent of
the parties, which allows for significant abuse by bad actors. The
failure to preemptively issue an order provides ample opportunity to
those who would channel unwarranted attention, harassing messages, and
threats to Federal employees, who neither sought nor deserve public
attention, merely for fulfilling their responsibilities. This failure
should be corrected to protect rank and file Federal employees seeking
to serve the public interest. However, unfortunately, to date, MSPB has
proven itself unwilling to take necessary steps to protect Federal
employees from threats and harassment. As such, OPM believes it would
be prudent and provide much needed protection for Federal employees to
adjudicate these appeals by issuing cease-and-desist
[[Page 5357]]
directives, with strict consequences for failure to comply.
731.507 Reopening and Reconsideration of an Initial Decision
Under the proposed rule, OPM would, at its sole discretion, be able
to reopen and reconsider an initial decision issued under this subpart
upon a request from either party to a dispute. The appellant, the
appellant's representative, or the agency would have 30 calendar days
from the issuance of the initial decision to request reopening and
reconsideration. In any case that is reopened and reconsidered, OPM
would be able to (1) issue a decision that decides the case; (2)
require the parties to submit arguments and evidence; or 3) take any
other action necessary for final disposition of the case. OPM would
have authority to affirm, reverse, modify, or vacate the initial
decision, in whole or in part.
731.508 Review by the OPM Director
In proposed Sec. 731.508, OPM reserves the Director's right, at
his or her discretion and sua sponte, to reopen and reconsider any
decision OPM has issued provided the decision has not yet become final.
OPM views this appellate process as necessary to ensure that the
Director can supervise adjudicators sufficiently to avoid any serious
constitutional concerns from having subordinate officials wield
executive authority. Under Article II, the Constitution vests the
executive power in the President who must rely upon subordinates to
exercise his authority. Adjudicators assigned to adjudicate appeals
under this proposed rule exert significant authority that must be
properly supervised by a principal officer appointed by the President
with Senate consent to avoid a constitutional problem. See United
States v. Arthrex, Inc., 594 U.S. 1 (2021).
731.509 Final Decision
OPM proposes that the initial decision will become the final
decision of OPM if neither party requests reopening and reconsideration
from OPM within 30 calendar days from the date of the initial decision.
A decision upon reopening and reconsideration will become OPM's final
decision if the Director does not reopen a decision upon
reconsideration within 30 calendar days from the date of the reopen and
reconsideration decision. A decision by the Director will be the final
decision of the agency and is effective upon the date of issuance.
Expected Impact of This Proposed Rule
1. Statement of Need
This rule is needed to streamline suitability action appeals
procedures, thereby improving the efficiency, rigor, and timeliness by
which OPM and agencies resolve challenges to suitability actions and
ensure the integrity and efficiency of the service. The rule fosters
greater process efficiency by eliminating appeals to the MSPB for
suitability actions while bolstering the procedures by which an
individual against whom a suitability action is being taken can appeal.
These changes are expected to reduce time and costs while promoting an
impartial and effective suitability process that produces sound
decisions. This rule also returns control over the timely processing of
suitability action appeals to the executive branch, eliminating delays
caused by the Senate's failure to confirm Board members at the MSPB.
This rule also brings the suitability appeals procedures into
compliance with congressional intent, where suitability actions are
excluded from standard Chapter 75 procedures, which include appeal
rights to the MSPB. Eliminating appeals to the MSPB for suitability
actions and providing a process free from extensive delays and backlogs
may also increase the likelihood that agencies will act when warranted
to protect the integrity and promote the efficiency of the service,
rather than the status quo where agencies' decisions to act could
potentially be influenced by the prospect of a protracted process that
does not provide timely resolution. Although this intangible benefit
cannot be quantified, a greater willingness by agencies to hold
individuals accountable for misconduct that compromises the efficiency
or integrity of the service improves the overall service Americans
receive from their Government. On balance, these changes will result in
savings to agency operational costs and the American public, while also
providing due process and more expeditiously arriving at a resolution
that protects the integrity and promotes the efficiency of the service.
2. Impact
Applicants, appointees, and employees in the competitive service,
in the excepted service where the incumbent can be noncompetitively
converted to the competitive service, and in the career Senior
Executive Service would be impacted by the changes proposed in this
rule. These are the only categories of individuals currently subject to
suitability actions. OPM anticipates that this proposal would allow
these individuals to reach final resolution of a suitability action
faster, while still providing due process.
OPM would also be impacted by the proposed changes as OPM would be
responsible for operating the OPM suitability action appeal process.
Some of this impact would be offset by elimination of OPM adjudicator
and attorney responsibilities currently associated with preparing
materials and defending the Government's position when respondents
appeal OPM's decisions to the MSPB, as that avenue of appeal would no
longer be afforded.
3. Costs
The costs associated with this rulemaking could vary depending on
the outcome of the June NPRM. If finalized as proposed, the June NPRM
would result in additional cost impacts should the changes proposed in
this present rulemaking also finalize as proposed. As such, although
the proposed changes in this present rulemaking are separate and
distinct from the changes proposed in the June NPRM, the cost analysis
below addresses the potential impacts if both rulemakings are finalized
as proposed.
One-Time Implementation Cost
This proposed rule will affect the operations of most Federal
agencies in the Executive branch--ranging from cabinet-level
departments to small independent agencies. To comply with the
regulatory changes in this proposed rule, affected agencies will need
to review the rule and update their policies and procedures. For this
cost analysis, the assumed average salary rate of Federal employees
performing this work will be the rate in 2025 for GS-14, step 5, from
the Washington, DC, locality pay table ($161,486 annual locality rate
and $77.38 hourly locality rate). We assume that the total dollar value
of labor, which includes wages, benefits, and overhead, is equal to 200
percent of the wage rate, resulting in an assumed labor cost of $154.76
per hour. We estimate that, in the first year following publication of
the final rule, the effort to update policies and procedures will
require an average of 80 hours of work by employees with an average
hourly cost of $154.76. This effort would result in estimated costs in
the first year of implementation of approximately $12,400 per agency,
and about $1 million in total Government-wide.
Recurring Costs
After determining one-time implementation costs, OPM assessed
[[Page 5358]]
recurring cost impacts. This total cost impact is determined by
calculating two elements: first, cost savings at agencies, OPM, and
MSPB from eliminating suitability action appeals to MSPB; and second,
costs for agencies and OPM to process suitability action appeals
through the proposed OPM appeals process. The difference between cost
savings from eliminating labor hours expended on suitability action
appeals at MSPB and the new costs for processing these appeals with OPM
is the overall cost impact. The assessment looks first at the cost
impact of this proposed rule standing alone. It then assesses the
combined impact if both this proposed rule and the June NPRM both
finalize as proposed.
a. Cost Impacts Solely From Eliminating MSPB Suitability Appeals
1. Agency/OPM Savings: Eliminating MSPB appeals for suitability
actions will reduce costs at both OPM and agencies, eliminating the
need for OPM and agencies to prepare for and participate in MSPB
proceedings for suitability actions. OPM estimates that, in the current
framework, MSPB hears approximately 63 initial suitability appeals per
year, on average, according to its annual reports for 2018-2024.\8\ OPM
acknowledges that not all appeals reach a hearing. Based on MSPB's
annual reports from 2018-2024, an average of 86% of suitability appeals
were either dismissed or settled, meaning, on average, 54 of the 63
initial suitability appeals per year would only proceed through part of
the process, with 9 appeals requiring the full investment of time to
defend an action through a hearing. The proposed rule would eliminate
the costs for both agency and OPM suitability staff and attorneys who
support MSPB appeals.
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\8\ MSPB's Annual Reports for FY 2018 through FY 2024 can be
found on MSPB's website at <a href="https://www.mspb.gov/about/annualreport_archive.htm">https://www.mspb.gov/about/annualreport_archive.htm</a>.
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OPM routinely supports appeals of its suitability actions at MSPB,
and as such, understands the nature of its staff that support these
appeals and the labor hours required. For the purpose of this analysis,
OPM assumes that agency staff performing similar duties supporting
appeals of agency suitability actions to MSPB are at the same grade
level as OPM's staff and that they spend the same average amount of
time supporting each appeal. OPM also notes that, although OPM and
agency suitability staff and attorneys would have offsetting new costs
to support appeals to OPM in the new proposed process, only the cost
savings attributable to eliminating the need to support appeals to MSPB
is calculated in this section. The new costs that offset some savings
are calculated in a section that follows.
Suitability staff support appeals to MSPB by spending approximately
20 hours preparing packages for attorneys and processing materials
relied upon. This work occurs prior to any decision to dismiss or
settle an appeal, and therefore the cost is calculated accounting for
all 63 appeals. The average salary rate of OPM's suitability personnel
performing this work is at the 2025 rate for a GS-13, step 5. Although
OPM's suitability personnel are not primarily located in Washington,
DC, OPM elects to use the Washington, DC pay locality for this analysis
to make its costs representative of agency costs. The 2025 Washington,
DC locality rate for a GS-13, step 5 is $136,658 annually and $65.48
hourly. OPM assumes the total value of labor is 200 percent of the
hourly wage rate, for a total average hourly cost of $130.96, for an
annual cost savings from suitability staff of approximately $165,000.
As noted, OPM assumes the average time spent by agency suitability
staff on each appeal and the average salary is the same as OPM's
suitability staff. The required investment of time for attorneys varies
depending on the disposition type of the appeal--dismissed, settled, or
decided after hearing. For appeals that proceed through a hearing,
approximately 9 per year governmentwide, OPM attorneys spend
approximately 100 hours reviewing evidence, preparing submissions, and
arguing each appeal before MSPB. For appeals that are dismissed or
settled, an average of 54 per year governmentwide, OPM estimates OPM
attorneys still spend 50 hours reviewing evidence, preparing
submissions, and negotiating settlement agreements. OPM again assumes a
similar level of effort by agencies' attorneys and therefore uses these
estimates of attorney costs as representative for the entire 63 initial
suitability appeals received by the MSPB annually. The average salary
rate of attorneys performing this work at OPM is at the 2025 rate for a
GS-14, step 5, from the Washington, DC, locality pay table ($161,486
annual locality rate and $77.38 hourly locality rate). OPM assumes the
total value of labor is 200 percent of the hourly wage rate, for a
total average hourly cost of $154.76. OPM again assumes an equivalent
cost of labor for agencies' attorneys. Accounting for the difference in
hours required based on the outcome of the appeal, OPM estimates annual
savings from reduced attorney time of approximately $554,000. Taking
savings for suitability staff time and attorney time together, the
total annual cost savings would be $719,000.
2. MSPB's Savings from Reduced Suitability Appeals Workload: There
would also be cost savings at MSPB due to its reduced workload
resulting from the proposed rule. OPM again acknowledges that not all
appeals result in hearings. Using the above estimates for annual
suitability appeals (63), OPM estimates that MSPB would avoid
processing 54 appeals that are dismissed or settled and avoid
processing another 9 that proceed through a full hearing. OPM assumes
initial MSPB decisions are decided by MSPB administrative judges who
are paid at the Washington, DC locality rate for a GS-15, step 5 level,
with an hourly cost of $182.04 once adjusted for the true cost of
labor. For appeals that proceed through a full hearing, OPM assumes the
administrative judges will spend 20 hours processing the appeal,
including issuing their decision. For appeals that are dismissed or
settled, OPM assumes the administrative judges will spend 12 hours
reviewing filings, coordinating settlement discussions, and finalizing
settlement agreements. This implies that MSPB will save $150,000 in
total annually by not processing suitability action appeals. OPM
acknowledges that there will likely be additional cost savings for MSPB
related to MSPB administrative staff hours supporting MSPB's appeals
processing. OPM does not have sufficient information to estimate these
additional savings accurately, and as such, OPM welcomes any comments
on potential additional cost savings impacts. Combined with the annual
savings at OPM and agencies, the total estimated annual savings before
cost offsets are $869,000.
3. Costs of Operating New OPM Suitability Actions Appeals Process:
Operating the OPM suitability actions appeals process will cause OPM to
experience increased costs. Above, OPM identified that agencies and OPM
would realize savings from its suitability staff and attorneys no
longer needing to support suitability action appeals at MSPB. OPM and
agencies would experience offsetting costs to support suitability
action appeals in OPM's new proposed appeals process. The costs of
OPM's proposed appeals process is comprised of four parts: first, the
time required by suitability staff at the agency responsible for the
action (responsible agency) to prepare its response file for the
appeal; second, the time required by OPM's suitability appeals staff to
review and decide appeals; third, the cost to hold credibility
hearings; and fourth, the cost
[[Page 5359]]
to OPM's appeal staff to process requests to reopen and reconsider
initial decisions.
For the first cost component, OPM's proposed appeals process would
still require OPM and agency suitability staff to support these appeals
by compiling agency response files. OPM assumes this would be a fully
offsetting cost. OPM assumes the 20 hours per appeal saved by
suitability staff described above, which came with a cost savings of
$165,000, would need to be redirected in full to supporting appeals to
OPM's proposed process, and therefore the $165,000 savings described
above would result in an offsetting $165,000 cost to support OPM's
proposed process, for a net cost of $0. This work by OPM and agency
staff represents the work done by those responsible for taking the
suitability actions in defending the action on appeal, separate from
OPM staff that would review appeal requests.
For the second cost component that consists of OPM's review of the
appeal packages, whether an appeal of an agency action or an OPM
action, OPM intends to have a separate cadre of staff who review the
appeals and make recommendations to an OPM official for an initial
decision. That official would review the file and recommendation and
issue the initial decision. OPM estimates its personnel who will review
the appeals to make a recommendation will spend 10 hours reviewing each
appeal and making a recommendation. OPM assumes an average salary rate
of the appeal review personnel at the 2025 rate for a GS-13, step 5,
from the Washington, DC locality pay table ($136,658 annual locality
rate and $65.48 hourly locality rate). OPM assumes the total value of
labor is 200 percent of the hourly wage rate, for a total average
hourly cost of $130.96. OPM assumes the OPM official reviewing the
recommendation and issuing the initial decision will spend 3 hours per
appeal. OPM assumes an average salary rate of the official performing
this work at the 2025 rate for a GS-14, step 5, from the Washington, DC
locality pay table ($161,486 annual locality rate and $77.38 hourly
locality rate). OPM assumes the total value of labor is 200 percent of
the hourly wage rate, for a total average hourly cost of $154.76. To
determine the number of appeal requests OPM would process per year, OPM
assumes that the 63 initial suitability appeal cases (noted above) that
would avoid going to the MSPB under this proposed rule would be
submitted to OPM instead.
For the third cost component, agencies and OPM will incur costs
when OPM determines a credibility hearing is necessary to resolve a
dispute concerning a material fact that cannot be resolved solely based
on the written record. To determine the cost of credibility hearings,
OPM assumes that costs for the hearings will come from the following
areas: an administrative judge to preside over the hearing; the OPM
official deciding the appeal to prepare for and attend the hearing and
incorporate the findings of the hearing into the decision; attorneys
for the responsible agency to review the file, prepare for the hearing,
and participate in the hearing; suitability staff or other staff from
the responsible agency to provide materials and support to agency
attorneys and participate in the hearing, potentially as a witness; and
costs for transcribing the hearings. OPM assumes 6 hours of time for an
administrative judge performing this work at the Washington, DC
locality rate for a GS-15, step 5 level, with an hourly cost of $182.04
once adjusted for the true cost of labor OPM assumes 10 hours of time
for the GS-14 OPM deciding official at the same $154.76 hourly rate
noted previously for this work. OPM assumes 20 hours of attorney time
for the responsible agency's attorney performing this work at the 2025
rate for a GS-14, step 5, from the Washington, DC locality pay table
($161,486 annual locality rate and $77.38 hourly locality rate). OPM
assumes the total value of labor is 200 percent of the hourly wage
rate, for a total average hourly cost of $154.76. OPM assumes 15 hours
for the responsible agency's suitability staff or other staff
performing this work at the 2025 rate for a GS-13, step 5, from the
Washington, DC locality pay table ($136,658 annual locality rate and
$65.48 hourly locality rate). OPM assumes the total value of labor is
200 percent of the hourly wage rate, for a total average hourly cost of
$130.96. OPM assumes a cost of $2,500 to procure transcription services
for each hearing.
For the fourth cost component, OPM will incur costs to process
requests to reopen and reconsider initial decisions. OPM assumes that
for each request granted, a different GS-13 reviewer will spend 3 hours
reviewing the case and making a new recommendation, and that either the
same or a different GS-14 deciding official will spend another 2 hours
on each request.
Taking together all four cost components to calculate average costs
across the 63 suitability appeals per year, OPM's proposed suitability
appeals processes based on current-day levels of suitability appeals
would cost agencies and OPM approximately $294,000 annually. OPM
anticipates its current staffing levels will support handling this new
workload.
b. Potential Additional Cost Impacts of OPM's June NPRM
As described earlier, on June 3, 2025, OPM proposed changes to
subparts A, B, C, and D of part 731. Most notably, the proposed changes
would allow agencies and/or OPM to take suitability actions against
appointees and employees based on post-appointment conduct. As
described in the June NPRM, if the changes proposed in that rulemaking
finalize as proposed, some post-appointment misconduct actions that are
currently processed under Chapter 75 procedures may be processed as
suitability actions under 5 CFR part 731. The key impact of the
proposed changes in the June NPRM on this current rulemaking is that an
increase in the number of suitability actions taken per year could have
a direct effect on the number of suitability action appeals diverted
from MSPB to OPM, thereby significantly changing the volume of
suitability actions appeals per year from the current 63 per year
received by MSPB. To account for this potential impact on the costs
associated with the current proposal to move suitability actions
appeals from MSPB to OPM, the following cost analysis estimates the
additional savings and any offsetting costs in the event the volume of
suitability actions increases as a result of the proposed changes to
take suitability actions based on post-appointment conduct.
1. Agency Savings from Fewer Adverse Action Appeals to MSPB: In the
June NPRM, OPM estimated that, if the rule finalizes as proposed,
approximately 1,226 removal actions presently taken by agencies under
Chapter 75 could be referred to OPM for suitability actions instead.
From FY 2021 to FY 2025, OPM found that its own suitability actions
were appealed to the MSPB at a rate of 20.8%. OPM assumes that removal
actions for misconduct that could be processed as suitability actions
if the June NPRM finalizes as proposed are appealed at a similar rate.
This would result in an average of 255 appeals per year that shift from
being adverse action appeals to suitability action appeals.. Under the
changes proposed by this current rulemaking, those suitability action
appeals would not be appealable to the MSPB, as they would come to OPM
instead. This means an average of 255 MSPB initial appeal cases could
be avoided. OPM acknowledged above that not all appeals reach a hearing
and accounts for this in its calculation of the
[[Page 5360]]
costs agencies and OPM would avoid by no longer defending these appeals
at the MSPB. Above, based on MSPB's present day processing of
suitability appeals, it was determined that suitability appeals are
dismissed or settled at a rate of 86%. Applying this same rate to the
potential 255 adverse appeals avoided, on average, 219 of the 255
initial adverse action appeals avoided would only proceed through part
of the process, with 36 appeals requiring the full investment of time
to defend an action through a hearing. Regardless of whether an appeal
is dismissed or settled, OPM assumes that agencies' HR personnel spend
at least 80 hours preparing for MSPB adverse action appeals. OPM
assumes an average salary rate of agencies' supervisory and HR
personnel performing this work at the 2025 rate for a GS-15, step 5,
from the Washington, DC locality pay table ($189,950 annual locality
rate and $91.02 hourly locality rate). OPM assumes the total value of
labor is 200 percent of the hourly wage rate, for a total average
hourly cost of $182.04, with a total staff savings of $3.7 million. OPM
assumes agency attorneys spend a further 100 hours reviewing evidence,
preparing submissions, and arguing each of the 36 appeals that go
through a hearing. As noted previously, OPM assumes the average time
spent by agency counsel on each appeal and the average salary is the
same as OPM's counsel that handles suitability appeals. For appeals
that are dismissed or settled, an average of 219 per year, OPM
estimates attorneys still spend 50 hours reviewing evidence, preparing
submissions, and negotiating settlement agreements. OPM assumes an
average salary rate of agencies' attorneys performing this work at the
2025 rate for a GS-14, step 5, from the Washington, DC, locality pay
table ($161,486 annual locality rate and $77.38 hourly locality rate).
OPM assumes the total value of labor is 200 percent of the hourly wage
rate, for a total average hourly cost of $154.76, and a total savings
in attorneys costs of $2.2 million. Taken together, the total annual
cost savings to agencies would be roughly $6 million.
2. MSPB's Savings from Reduced Adverse Action Appeals Workload:
There would also be cost savings at MSPB due to its reduced workload
resulting from avoiding 255 initial appeals that would be processed
with OPM as suitability action appeals instead of adverse action
appeals at MSPB. OPM again acknowledges that not all appeals result in
hearings. Using the above estimates, OPM estimates that MSPB would
avoid processing 219 appeals that are dismissed or settled and avoid
processing another 36 that proceed through a full hearing. OPM again
assumes initial MSPB decisions will be decided by MSPB administrative
judges who are paid at the GS-15, step 5 level, with an hourly cost of
$182.04. For appeals that proceed through a full hearing, OPM assumes
they will spend 20 hours conducting each hearing and preparing their
decision. For appeals that are dismissed or settled, OPM assumes they
will spend 12 hours reviewing filings, coordinating settlement
discussions, and finalizing settlement agreements. This implies that
MSPB will save $609,000 yearly by avoiding processing adverse actions
appeals that would be processed instead by OPM as suitability actions
appeals. OPM again acknowledges that there will likely be additional
cost savings for MSPB related to MSPB administrative staff hours
supporting MSPB's appeals processing. OPM again does not have
sufficient information to estimate these additional savings accurately,
and as such, OPM welcomes any comments on potential additional cost
savings impacts. Combined with the annual savings at OPM and agencies,
the total estimated annual savings before cost offsets is $6.6 million.
3. Additional Costs for OPM Suitability Actions Appeals Process: An
increase of 255 suitability action appeals resulting from current
adverse actions removals being processed as suitability actions would
increase OPM's costs to operate its suitability actions appeals
process. OPM assumes that the same four cost components used to
calculate the cost of its proposed suitability appeals would apply,
with only an adjustment to the volume of suitability appeals processed.
Therefore, OPM applies the same assumptions for the rate of pay of
staff at agencies and OPM performing the work that makes up the four
cost components and the number of hours required for each part of the
process as described in section a. of Recurring Costs. Taking together
all four cost components and averaging out costs across the potential
additional 255 suitability appeals per year, OPM's proposed suitability
appeals processes would cost agencies and OPM approximately $1.2
million annually. OPM anticipates that its current adjudicatory
personnel could assume the preparatory work to compile agency response
files and respond to information requests for appeals of OPM's own
suitability actions. For the work described of reviewing appeals and
making recommendations for initial appeal decisions, OPM anticipates
that it would likely need to increase the number of resources to handle
the new workload if the June NPRM finalizes as proposed and the
estimated 255 adverse actions appeals become suitability actions
appeals. OPM estimates it would likely need 2 additional personnel at
the 2025 rate for a GS-13, step 5, from the Washington, DC locality pay
table as described above.
c. Total Cost Impact
There are two potential total cost impacts considered. The first
total cost impact is restricted solely to the proposal in this present
rulemaking to move the venue for appeals of suitability actions for the
competitive service and career SES from MSPB to OPM. Taking into
account cost savings from avoiding the costs of appeals to MSPB and new
costs associated with the proposed OPM suitability action appeal
process, assuming the volume of suitability action appeals remains
consistent with current levels reported in MSPB's Annual Reports, the
proposed changes would result in an annual cost savings to the
government of approximately $574,000.
Then, there are the additional total cost implications if both the
present rulemaking and the June NPRM finalize as proposed. Taking into
account both decreases and increases in levels of effort associated
with the potential for an increased volume of suitability action
appeals stemming from the June NPRM, the result would be an additional
annual savings for the government of $5.4 million. Combined with the
annual savings associated with this current proposed rule based on
present day levels of suitability actions ($574,000), OPM estimates an
annual net savings of $5.9 million should both the present proposed
rulemaking and the June NPRM finalize as proposed. These recurrent
annual savings are separate from the one-time implementation costs of
approximately $990,464 OPM anticipates resulting from this current
proposed rulemaking.
OPM notes that its estimates do not include any costs (or savings)
to individuals due to changes in rates of representation. OPM requests
comment on these effects, as well as other impacts of the rule.
4. Benefits
The expected benefits of the proposed rule are to foster greater
process efficiency by eliminating appeals to the MSPB for suitability
actions while bolstering the procedures by which an individual against
whom a suitability action is being taken can appeal that action and
unfavorable suitability
[[Page 5361]]
determination. These changes are expected to reduce time and costs
while promoting an impartial and effective suitability process that
produces sound decisions and removes unsuitable individuals from the
Federal service. This rule will also provide the executive branch with
more control over its ability to process suitability appeals in a
timely manner by removing the process' dependency on the Senate
confirming MSPB board members. This rule also brings the suitability
appeals procedures into compliance with congressional intent, where
suitability actions are excluded from standard Chapter 75 procedures,
which include appeal rights to the MSPB. On balance, these changes will
result in savings to agency operational costs and the American public,
while also providing due process and more expeditiously arriving at a
resolution that protects the integrity and promotes the efficiency of
the service.
5. Alternatives
OPM could decide to retain the existing procedures by which
individuals against whom a suitability action is taken may appeal the
action to the MSPB; however, the streamlining of the final decision
process is expected to result in greater efficiency than is currently
borne out in the process by which individuals may appeal suitability
actions to the MSPB. It is also expected to produce decisions that
better protect the integrity and efficiency of the Federal service.
Another alternative is that OPM could attempt to implement an OPM
suitability appeals process that still allows individuals to appeal to
the MSPB after first passing through the OPM process. Upon reviewing
the prior failings of the OPM Review Panel in the 1990s, OPM believes
that, even with adjustments, any process that still affords appeals to
the MSPB would be cost prohibitive upon implementation and delay
resolution of appeals beyond what is seen today.
Severability
OPM proposes that, if any of the provisions of this proposed rule
as finalized is held to be invalid or unenforceable by its terms, or as
applied to any person or circumstance, it shall be severable from its
respective section(s) and shall not affect the remainder thereof or the
application of the provision to other persons not similarly situated or
to other dissimilar circumstances. For example, if a court were to
invalidate any portions of this proposed rule as finalized removing
appeal procedures, the other portions of the rule--including the
portions providing that suitability appeals must be electronically
filed with OPM--would independently remain workable and valuable. In
enforcing civil service protections and merit system principles, OPM
will comply with all applicable legal requirements.
Regulatory Compliance
1. Regulatory Review
OPM has examined the impact of this rule as required by Executive
Orders 12866 and 13563, which direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public, health, and
safety effects, distributive impacts, and equity). A regulatory impact
analysis must be prepared for rules with effects of $100 million or
more in any one year. This rulemaking does not reach that threshold but
has otherwise been designated as a ``significant regulatory action''
under section 3(f) of Executive Order 12866, as supplemented by
Executive Order 13563. This proposed rule is expected to be an
Executive Order 14192 deregulatory action.
2. Regulatory Flexibility Act
The Director of OPM certifies that this rule will not have a
significant economic impact on a substantial number of small entities
because this rule will apply only to Federal agencies and individuals.
3. Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
4. Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
5. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits before
issuing any rule that would impose spending costs on State, local, or
tribal governments in the aggregate, or on the private sector, in any 1
year of $100 million in 1995 dollars, updated annually for inflation.
That threshold is currently approximately $206 million. This rulemaking
will not result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, in excess of
the threshold. Thus, no written assessment of unfunded mandates is
required.
6. Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number.
Depending on the population, currently suitability and vetting
information is collected through the following OMB Control Numbers.
<bullet> 3206-0261(Standard Form 85, Questionnaire for Non-Sensitive
Positions)
<bullet> 3206-0258 (Standard Form 85P, Questionnaire for Public Trust
Positions and SF 85P-S, Supplemental Questionnaire for Selected
Positions)
<bullet> 3206-0005 (SF 86, Questionnaire for National Security
Positions)
Additional information regarding these collections of information--
including all current supporting materials--can be found at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> by using the search function to enter
either the title of the collection or the OMB Control Number. Data
gathered through these information collections fall under the following
system of record notice: Personnel Vetting Records System, DUSDI 02-DoD
(83 FR 52420).
In addition, OPM suitability adjudication records currently are
covered by the system of record notice (SORN) CENTRAL-9 (81 FR 70191).
OPM is reviewing that SORN in light of the changes proposed in this
rulemaking and the changes proposed in the June NPRM. OPM will publish
any proposed changes to its SORNs in the Federal Register. Individual
agencies should each have a SORN that covers the agency adjudication
records. Agencies may need to evaluate whether the agency-specific
SORNs should be updated to include sharing information with OPM as part
of the appeals process.
On November 15, 2023, a new information collection, the Personnel
[[Page 5362]]
Vetting Questionnaire (PVQ), was approved (OMB Control Number 3206-
0279). The Defense Counterintelligence and Security Agency (DCSA) is
working to implement the new information collection. OPM plans to
discontinue the current information collections once the PVQ is
operational.
OPM believes this rulemaking does not require any changes in any of
these collections.
OPM is creating an e-filing system for use in collecting and
maintaining adjudication records for a variety of different existing
regulatory provisions. That system would also be used to support this
proposal. OPM is publishing a separate notice in the Federal Register
requesting OMB approval of a new information collection associated with
the e-filing system. OPM is also reviewing its SORNs to determine
whether to revise an existing SORN or to create a new SORN for the e-
filing system. OPM will publish any proposed changes to its SORNs in
the Federal Register.
List of Subjects in 5 CFR Part 731
Administrative practices and procedure, Authority delegations
(government agencies), Government contracts, Government employees,
Investigations.
The Director of OPM, Scott Kupor, reviewed and approved this
document and has authorized the undersigned to electronically sign and
submit this document to the Office of the Federal Register for
publication.
Dated: January 29, 2026
Jerson Matias,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM is
proposing to amend 5 CFR part 731 as follows:
PART 731--SUITABILITY AND FITNESS
0
1. The authority citation for part 731 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 7301. E.O. 10577, 19 FR 7521, 3
CFR, 1954-1958 Comp., p. 218, as amended. E.O. 13467, 73 FR 38103, 3
CFR, 2009 Comp., p. 198, as amended. E.O. 13488, 74 FR 4111, 3 CFR,
2010 Comp., p. 189, as amended. E.O. 13764, 82 FR 8115, 3 CFR, 2017
Comp. p. 243. Presidential Memorandum of January 31, 2014, 3 CFR,
2014 Comp., p. 340. 5 CFR parts 1, 2, 5, and 6.
Subpart E--[REVISED]
0
2. Revise Subpart E to read as follows:
Subpart E--Suitability Action Appeals
Sec.
731.501 Right to appeal.
731.502 Procedures for submitting appeals.
731.503 Form and content of suitability action appeals and agency
response.
731.504 Appellant representatives.
731.505 Adjudication of appeals.
731.506 Directives and penalties.
731.507 Requests for reconsideration of an initial decision.
731.508 Review by the OPM Director.
731.509 Final decision.
Sec. 731.501 Right to appeal.
(a) Right to appeal. An applicant, appointee, or employee
(``appellant'') may appeal to OPM a suitability action taken against
the appellant because of an unfavorable suitability determination.
(b) Appealable issues--(1) Unfavorable suitability determination.
The appellant may contest the determination that he or she is
unsuitable for federal employment based on the specific factors found
at Sec. 731.202(b) provided that the unfavorable suitability
determination resulted in a suitability action as defined at Sec.
731.101(a).
(2) Improper procedure. An appellant who has been subject to a
suitability action may challenge the failure to provide:
(i) Advance written notice stating the charge(s) and specific
reason(s) for the proposed action and notifying the appellant of the
right to answer the notice in writing and to review, upon request, the
materials relied upon;
(ii) Notice of the right to be represented by a representative
chosen by the appellant;
(iii) A minimum of 30 calendar days from the date of the notice of
proposed action to file a written response and furnish documentation;
or
(iv) A written decision delivered to the appellant that explains
the decision and the procedures for appealing the decision.
(c) Nonappealable issues. An applicant, appointee, or employee may
not appeal an unfavorable suitability determination that does not
result in a suitability action as those actions are defined at Sec.
731.101(a).
(d) Exclusive appeal procedure. The procedures in this subpart are
the sole and exclusive means of appealing a suitability action. These
procedures do not preclude an applicant, appointee, or employee from
filing an administrative complaint, appeal, or other matter within the
jurisdiction of another adjudicatory body (e.g., Equal Employment
Opportunity Commission) with that entity.
Sec. 731.502 Procedures for submitting appeals.
(a) Filing an appeal. An applicant, appointee, or employee, or the
individual's designated representative acting on his or her behalf, may
file the appeal with OPM. An individual seeking to file an appeal or
requesting OPM reopen and reconsider a decision under this subpart must
utilize the electronic filing system available at {URL TBD{time} .
Absent an exception, OPM will not accept delivery via U.S. mail,
commercial delivery service, or electronic mail.
(b) Time limits. An appellant may file an appeal within 30 calendar
days from the effective date of a suitability action. An appeal is
deemed timely when it is electronically filed by 11:59 p.m. Eastern
Time on the 30th calendar day after the effective date of the action.
(1) In computing the number of days allowed for filing an appeal,
the first day counted is the day after the effective date of the
suitability action. In the case of an appointee or employee, the
effective date of the action is the date the employing agency
effectuates the suitability action, regardless of whether the agency is
effectuating its own action or an OPM action. In the case of an
applicant, the effective date of the action is the date on the notice
of final action. When a notice of final action is served on an
applicant by mail, 10 calendar days are added to the date of the notice
for the deadline to file an appeal. If the date that ordinarily would
be the last day for filing falls on a Saturday, Sunday, or Federal
holiday, the filing period will include the first workday after that
date.
(2) If an individual does not file an appeal within the time set by
this section, the appeal will be dismissed as untimely filed unless the
individual demonstrates good cause for an untimely appeal. The
determination of good cause will be in the sole and exclusive
discretion of OPM.
(3) The appellant bears the burden to demonstrate, by a
preponderance of the evidence, the timeliness of the appeal.
(c) Jurisdiction. The appellant bears the burden to demonstrate, by
a preponderance of the evidence, that OPM possesses jurisdiction over
the appeal. To demonstrate this, the appellant must submit evidence
that establishes he or she was subject to a suitability action as an
applicant, an appointee, or an employee in the competitive service or
the career Senior Executive Service.
(d) E-filing procedures.
(1) All parties and their representatives to an appeal or reopen
and reconsideration must register as
[[Page 5363]]
instructed by OPM on its suitability action appeals website using a
unique email address.
(2) Registration as an e-filer constitutes consent to accept
electronic service of pleadings, evidence, notices, orders, and other
documents filed by other e-filers or issued by OPM. No party may
electronically file any document with OPM or access an appeal or
reconsideration of an appeal unless registered as an e-filer.
(3) All notices, orders, decisions, and other documents issued by
OPM, as well as all documents filed by parties, will be made available
for viewing and downloading at OPM's electronic filing system. Access
to documents is limited to the parties and their representatives who
are registered as e-filers in the cases in which they were filed.
(4) All parties and their representatives must follow the
instructions on OPM's website for properly filing all pleadings,
evidence, and other documents. OPM may issue orders regulating the
method and form of submissions and sanctions for noncompliance and may
order any party or authorized individual to cease participation as an
e-filer in circumstances that constitute a misuse of the system or a
failure to comply with law, rule, regulation, or policy governing the
use of a U.S. government information system.
(5) Each e-filer must promptly update their profile in OPM's
electronic filing system and notify OPM and other parties of any change
in their address, telephone number, or email address by filing a
pleading in each pending case with which they are associated. E-filers
are responsible for monitoring case activity regularly in OPM's
electronic filing system to ensure that they have received all case-
related documents.
(6) A party or representative may withdraw their registration as an
e-filer pursuant to the requirements posted on OPM's website.
Withdrawing registration in OPM's electronic filing system means that,
effective upon OPM's processing of a proper withdrawal, pleadings,
evidence, orders, and other documents filed by a party or party's
representative and OPM will no longer be served on that person
electronically and that person will no longer have electronic access to
their case records through OPM's electronic filing system. OPM may
still process an appeal or request for reconsideration after a party
withdraws as an e-filer. Withdrawal as a party or party's
representative will not be considered good cause for staying a case. A
withdrawal of registration as an e-filer may preclude future re-
registering as an e-filer.
(7) OPM, in its sole and exclusive discretion, may exempt a party
or representative from registering as an e-filer for good cause. A
party or representative must promptly contact OPM as instructed on
OPM's website to request an exemption from the e-filing requirements in
this subpart. OPM will not find good cause for failing to timely file
an appeal or seek reconsideration if the party or representative fails
to contact OPM to request an exemption before any deadline to appeal or
seek reconsideration.
(8) Documents filed in OPM's electronic filing system are deemed
received on the date of the electronic submission.
Sec. 731.503 Form and content of suitability action appeals and
agency response.
(a) Appeal. An appeal must be in writing and must contain the
appellant's legal name, physical address, mailing address where
different from physical address, email address, and phone number and
his or her representative, if any. The appeal must also name the agency
that took the action the appellant is appealing; state the basis of the
appeal; and include any documentation supporting the appellant's
appeal.
(b) Agency response. Upon receipt of the appeal, OPM will notify
the agency responsible for the suitability action (responsible agency)
of the presence of the appeal. Unless the OPM adjudicator processing
the appeal provides otherwise, the responsible agency must file its
response to an appeal within 30 calendar days of notification of the
appeal; include all documents contained in the agency record of the
action; include a designation of and signature by the authorized agency
representative; and any other documents or responses requested by OPM.
(c) Reply. Unless the OPM adjudicator provides otherwise, the
appellant may file a reply to an agency response to an initial appeal
utilizing the electronic filing system within 15 calendar days of the
agency response. The reply may only address the factual and legal
issues raised by the agency in response to the appeal.
(d) Inspection of OPM's appellate record. The parties may inspect
OPM's appellate record on request.
(e) Service of Documents. The parties will serve on each other
copies of any and all information submitted to OPM with respect to an
appeal. Such information must be served on all other parties at the
same time the information is submitted to OPM and must be accompanied
by a certificate of service stating how and when service was made.
(f) Untimely Filings. Untimely filings may be accepted upon a
party's showing of good cause at the sole and exclusive discretion of
OPM.
Sec. 731.504 Appellant representatives.
An appellant may select a representative of his or her choice to
assist in the preparation and presentation of an appeal, provided that
the appellant submits his or her designation of representative in
writing related to the specific appeal. If the selected representative
is a Federal employee, the representative may not perform such
representational functions while in a duty status (including while on
official time under 5 U.S.C. 7131), nor may the representative claim
agency reimbursement for any expenses incurred while performing such
representational function. OPM or the responsible agency may, in its
sole and exclusive discretion, disallow an appellant's choice of
representative when the representative is an employee of the
responsible agency or OPM and his or her activities as a representative
would cause a conflict of interest or position; that employee cannot be
released from his or her official duties because of the priority needs
of the Government; or that employee's release would give rise to
unreasonable costs to the Government.
Sec. 731.505 Adjudication of appeals.
(a) Appeals by applicants and non-OPM appointees or employees. OPM
will assign OPM personnel to adjudicate an appeal under this subpart.
However, no OPM employee may be assigned to adjudicate an appeal if the
employee has a prior relationship with the appellant. When the
suitability action under appeal was taken by an agency other than OPM,
the OPM employee assigned to adjudicate the appeal must not have been
an employee of the non-OPM agency that is party to the action during
the two years prior to the date on which the appeal was filed. When a
suitability action taken by OPM is appealed, there must be appropriate
independence between the OPM employee assigned to hear the appeal and
the OPM employee(s) involved in the decision to take the suitability
action. When necessary, OPM may appoint an administrative law judge to
adjudicate an appeal.
(b) Appeals by OPM appointees or employees. OPM will assign an
administrative law judge to adjudicate an appeal under this subpart by
an OPM appointee or employee. To insulate the
[[Page 5364]]
adjudication of its own personnel's appeals from agency involvement,
OPM will not disturb initial decisions in those cases unless a party
shows there has been harmful procedural irregularity in the proceedings
or that the administrative law judge has made a clear error of law. For
these purposes, the term harmful procedural irregularity means an
irregularity in the application of procedures was likely to have caused
the administrative law judge to reach a conclusion different from the
one he or she would have reached in the absence or cure of the
irregularity.
(c) Training of personnel assigned to adjudicate appeals. All OPM
employees or administrative law judges assigned by OPM to adjudicate
appeals under this subpart must have completed training that complies
with national training standards for suitability adjudicators that
qualifies them to review OPM and agency suitability determinations and
actions.
(d) Ascertainment of facts. (1) In the course of adjudicating an
appeal, OPM may independently investigate the facts underlying an
unfavorable suitability determination by requesting additional written
records from the appellant or the responsible agency.
(2) Before conducting an investigation, OPM will inform the
appellant and the responsible agency of the investigation and nature of
the records requested.
(3) Upon completion of an investigation, OPM will provide the
appellant and the responsible agency with a copy of any information
obtained through the investigation, and a reasonable opportunity to
submit arguments or additional information to support their positions.
(4) When OPM determines the written record is insufficiently
developed to decide the appeal due to disputes involving one or more
material facts, OPM will:
(i) Hold a hearing to evaluate witness credibility to resolve any
issues of material fact,
(ii) Conduct an investigation in accordance with paragraphs (1)-(3)
of this section, or
(iii) Reverse or vacate the responsible agency's decision, in whole
or part.
(5) OPM will assign an administrative judge to preside over witness
credibility hearings held under this paragraph (d).
(e) If a party fails to participate in an investigation or witness
credibility hearing pursuant to paragraph (d), OPM may, except when
prohibited by law, impose any sanction listed at Sec. 731.506(b)(1)-
(3).
(f) Standard of review. OPM will base its review of an unfavorable
suitability determination and consequent suitability action solely on
the written record and, if applicable, any witness credibility hearing
conducted pursuant to paragraph (d)(4). OPM will affirm the suitability
action if the suitability determination is supported by a preponderance
of the evidence.
(g) Initial decision. OPM may issue an initial decision that
affirms, reverses, modifies, or vacates the unfavorable suitability
determination and consequent suitability action, in whole or in part.
OPM will notify the appellant and responsible agency in writing of its
decision on the appeal.
(h) Remedies. (1) If the appellant is the prevailing party, OPM
will order relief including correction of the suitability action and
any back pay, interest, and reasonable attorney fees consistent with
subpart H of part 550 of this chapter. The appellant as a prevailing
party is not entitled to compensatory damages or other relief not
authorized under 5 U.S.C. 5596(b).
(2) If a party timely requests reopening and reconsideration of an
initial decision or the OPM Director reopens and reconsiders an initial
decision, the responsible agency must continue to provide ordered
relief unless OPM issues an order staying any such relief. No such stay
may be ordered that would deprive pay and benefits to the individual
while the initial decision is pending reconsideration.
(3) Any back pay, interest, or attorney fees ordered are not
payable until the decision is a final decision in accordance with Sec.
731.509.
Sec. 731.506 Sanctions and protective orders.
(a) Cease-and desist order. OPM may issue an order to a party to
prevent or to cease-and-desist harassing communications (or
communications which could reasonably be foreseen to lead to
harassment) with or about any individual, or to prohibit a party from
using any information related to the appeal for any purpose whatsoever
unrelated to the adjudication of the appeal. OPM may do this sua
sponte, or at the request of a party, preemptively or at any juncture
in the appeal process. A party requesting OPM to issue a protective
order or cease-and-desist order should file such request using the e-
filing procedures proscribed at Sec. 731.502(d), and must include a
statement of reasons justifying the request, together with any relevant
documentary evidence.
(b) Failure to comply with an OPM order. When a party to an appeal
fails to comply with an order issued under paragraph (a), OPM may,
except when prohibited by law:
(1) Draw all inferences in opposition to the noncompliant party
with regard to the appeal in question;
(2) Prohibit the noncompliant party from introducing evidence, or
additional evidence, concerning the appeal, or otherwise relying on the
record; or
(3) Eliminate from consideration any appropriate part of the
filings or other submissions of the noncompliant party.
Sec. 731.507 Requests for reconsideration of an initial decision.
(a) Upon a request from either party to the dispute, OPM may, in
its sole and exclusive discretion, reopen and reconsider an initial
decision issued under this subpart. A party may request reopening and
reconsideration of an initial decision within 30 calendar days from
issuance of the initial decision.
(b) The request to reopen and reconsider must be filed using the
electronic filing system available at {URL TBD{time} and must explain
how the ground(s) relied on affected the outcome of the case. Any
documents or further filings related to a request to reopen and
reconsider must be filed at the same time the request is submitted.
(c) Grounds for which OPM may grant a request to reopen and
reconsider are:
(1) The initial decision contains an erroneous finding of material
facts sufficient to warrant a different outcome;
(2) The initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the
facts of the case. The party must explain how the error affected the
outcome of the case;
(3) New and material evidence or legal argument is available that,
despite the party's due diligence, was not available when the record
closed. To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed; or
(4) OPM finds good cause to reopen and reconsider an appeal.
(d) In any appeal that is reopened and reconsidered, OPM may:
(1) Issue a reopened and reconsidered decision (``R&R decision'')
that affirms, reverses, modifies, or vacates the initial decision, in
whole or in part;
(2) Require the parties to submit argument and evidence;
(3) Take any other action necessary for final disposition of the
case; and
(4) Issue an order with a date for compliance with the R&R
decision.
(e) There is no further right of administrative appeal from the R&R
decision.
[[Page 5365]]
(f) Untimely filings may be accepted upon a party's showing of good
cause at the sole and exclusive discretion of OPM.
Sec. 731.508 Review by the OPM Director.
The OPM Director may, at his or her discretion, sua sponte, reopen
and reconsider any appeal in which OPM has issued a decision that has
not yet become final.
Sec. 731.509 Final decision.
(a) The initial decision becomes OPM's final decision if a party
does not request OPM to reopen and reconsider the initial decision
within 30 calendar days of the date of the initial decision was issued.
(b) A R&R decision pursuant to Sec. 731.507 becomes OPM's final
decision if the OPM Director does not reopen the decision pursuant to
Sec. 731.508 within 30 calendar days of the date on which the R&R
decision was issued.
(c) A decision by the OPM Director pursuant to Sec. 731.508 is
OPM's final decision and is effective upon the date of issuance.
(d) There is no right of appeal of OPM's final decision.
[FR Doc. 2026-02449 Filed 2-5-26; 8:45 am]
BILLING CODE 6325-66-P
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</html>Indexed from Federal Register on February 6, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.