[Federal Register Volume 91, Number 147 (Monday, August 3, 2026)]
[Rules and Regulations]
[Pages 49034-49069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15650]



[[Page 49033]]

Vol. 91

Monday,

No. 147

August 3, 2026

Part III





Office of Personnel Management





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5 CFR Part 731





Suitability Action Appeals; Final Rule

Federal Register / Vol. 91 , No. 147 / Monday, August 3, 2026 / Rules 
and Regulations

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

[Docket ID: OPM-2025-0173]
RIN 3206-AO97


Suitability Action Appeals

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to revise how an applicant, appointee, or employee may 
appeal a suitability action taken under 5 CFR part 731. OPM will 
replace the Merit Systems Protection Board (MSPB) as the adjudicative 
agency for such appeals. The change will 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: Effective September 2, 2026. This rule does not apply to appeals 
filed with the MSPB before the effective date of this final rule.

FOR FURTHER INFORMATION CONTACT: For questions, contact Joe Knouff, 
Suitability Executive Agent Programs, by email at [email protected] or by 
phone at (202) 599-0090.

SUPPLEMENTARY INFORMATION: OPM is issuing this rule to improve the 
efficiency, rigor, and timeliness by which OPM and agencies resolve 
challenges to suitability actions and ensure the integrity and 
efficiency of the service. In February 2026, OPM proposed updates to 5 
CFR part 731 to modernize suitability procedures that allow the 
Government to quickly resolve any risks discovered in the Federal 
workforce by returning the venue to hear suitability action appeals 
from the MSPB to OPM. See 91 FR 5352 (Feb. 6, 2026). OPM proposed new 
procedures by which an individual may appeal a suitability action to 
OPM. This final rule amends 5 CFR part 731 subpart E to align with 5 
U.S.C. 7512(F) and the Fiscal Year 2016 National Defense Authorization 
Act (FY 2016 NDAA) excluding OPM suitability actions from the scope of 
chapter 75 and providing procedures to appeal suitability actions to 
OPM to improve the speed and effectiveness of Government personnel 
security, suitability, and credentialing reviews.

I. Digest of Public Comments and Summary of Changes From the Proposed 
Rule

    In response to the proposed rule, OPM received 343 comments during 
the 30-day public comment period from multiple individuals and multiple 
labor organizations. At the conclusion of the public comment period, 
OPM reviewed and analyzed the comments. In general, the comments on the 
rule change were mixed, with some expressing support, others expressing 
opposition, and many comments that were outside the scope of the 
rulemaking.
    The comments included many suggestions for revisions that OPM 
considered and either adopted, adopted in part, or declined. For 
example, commenters were concerned with OPM's authority to establish 
the appeal process in this final rule; the relationship between 
suitability actions and MSPB review; procedural protections available 
to individuals subject to suitability actions; the independence and 
neutrality of OPM's appeal process; the treatment of discrimination 
claims, prohibited personnel practice allegations, and other claims 
within the jurisdiction of other adjudicatory bodies; appellant 
representation; protective orders and sanctions; the electronic filing 
process; publication or transparency of appeal decisions; the expected 
costs and benefits of the rule; and the adequacy of the comment period.
    OPM found many of the comments helpful. OPM has determined to move 
suitability action appeals from MSPB to OPM as set forth in the 
proposed rule. However, in the final rule, it has added a number of 
procedural safeguards in response to comments.
    First, the revised text narrows and clarifies the appeal right by 
specifying that it applies to applicants, appointees, and employees in 
the competitive service or career Senior Executive Service (SES), as 
those terms are used in part 731. It also adds an express burden-of-
proof provision: the appellant bears the burden on timeliness, 
jurisdiction, and any improper-procedure claim, while the responsible 
agency bears the burden to prove the charges supporting the unfavorable 
suitability determination and the substantive propriety of the 
suitability action. This responds to comments, including from 0303, 
0334, 0332, and 0329, that the proposed process lacked sufficient 
standards for fair and reasoned adjudication.
    Second, the revised text adds safeguards addressing concerns that 
OPM would be policymaker, enforcement authority, and adjudicator. It 
defines the ``responsible agency,'' including the OPM office or 
component responsible for the action when OPM took, directed, or made 
the suitability action, and requires separation between that component 
and the adjudicative function. It also adds adjudicator-insulation 
requirements, ex parte communication protections, conflict-of-interest 
disqualification standards, and ALJ adjudication for appeals by OPM 
applicants, appointees, or employees. These changes respond to 
independence and institutional-bias comments raised by 0207/0286, 0288, 
0303, 0334, 0332, 0314, 0331, and 0329.
    Third, the revised text strengthens the record and disclosure 
rules. The responsible agency must now produce a complete, indexed, 
paginated, and certified record, including materials considered, relied 
upon, generated, received, issued, or served in investigating, 
proposing, deciding, directing, or effectuating the action. The record 
must include charge-by-charge analysis, suitability-factor analysis, 
mitigating or exculpatory evidence, the rationale for the action 
selected, and implementation documents. The revised text also requires 
identification of withheld or redacted material and generally bars 
reliance on nondisclosed material unless the appellant receives notice 
of its substance and a meaningful opportunity to respond. This responds 
to comments from 0303, 0334, 0332, 0333, and 0329 that eliminating MSPB 
discovery would worsen information asymmetry and impair appellants' 
ability to challenge factual error, pretext, or procedural defects.
    Fourth, the revised text changes the fact-development and hearing 
provisions. The revised text allows additional information or 
investigation only when the existing record is insufficient to resolve 
a material issue and further development is reasonably likely to 
produce material information. It also provides that written-record 
review remains the default, but a hearing is required when the written 
record is insufficient to resolve a material factual dispute, including 
where there is a material credibility dispute. Any such hearing must be 
presided over by an administrative judge. This responds especially to 
0207/0286 and other commenters who urged objective hearing criteria and 
a meaningful mechanism for resolving disputed facts without adopting a 
categorical hearing right in every case.
    Fifth, the revised text broadens the savings clause and narrows the 
protective-order provision. The exclusive-appeal provision now states

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that the OPM process is the sole means of appealing a suitability 
action under part 731, but does not displace matters within the 
independent jurisdiction of the Equal Employment Opportunity Commission 
(EEOC), Federal Labor Relations Authority (FLRA), Inspectors General, 
MSPB, Department of Labor's Veterans' Employment and Training Service 
(VETS), or the Office of Special Counsel (OSC). The protective-order 
provision is narrowed to protect adjudicatory integrity, prevent 
threats, intimidation, targeted harassment, improper witness contact, 
disclosure of protected personal information, or misuse of nonpublic 
information, and it states that any protective order must be no broader 
than reasonably necessary and must not restrict lawful protected 
communications. These revisions respond to comments from 0303, 0334, 
0332, 0333, and 0329 regarding discrimination claims, labor-relations 
matters, whistleblower issues, veterans' rights, union communications, 
and concerns that the NPRM could operate as a gag order.
    Finally, the revised text adds several administrability and 
transparency improvements. It narrows e-filing sanctions by requiring 
repeated failure to follow instructions after a show-cause order before 
OPM may strike a document; requires initial decisions to make findings 
on each material charge, specification, and suitability factor; tailors 
remedies to applicants, appointees, and employees; gives more specific 
grounds for Director review; clarifies when decisions become final; and 
adds publication of final merits decisions or de-identified summaries. 
These changes respond to comments that the proposed process needed 
clearer standards, more reasoned decision-making, greater transparency, 
and stronger safeguards against arbitrary or opaque adjudication.

II. Authority and Background

    Congress has long charged the President with establishing rules for 
admission to the competitive service and with ensuring that individuals 
who enter and remain in the Federal workforce possess the character and 
conduct necessary to protect the integrity and promote the efficiency 
of the service. The President's authority to prescribe rules for the 
civil service and to regulate employee conduct is reflected in 5 U.S.C. 
3301, 3302, and 7301, and has been delegated in relevant part to OPM 
and its predecessor, the Civil Service Commission. OPM administers 
these authorities through governmentwide civil service regulations, 
including the suitability and fitness regulations in 5 CFR part 731. 
Those regulations apply to competitive service employees and career 
appointments in the Senior Executive Service (SES). See 5 CFR 
731.101(a).
    Suitability and fitness determinations examine whether an 
individual's character or conduct may have an adverse impact on the 
integrity or efficiency of the service. See 5 CFR 731.101, 731.201, and 
731.202. The objective of the suitability adjudicator is to determine 
whether there is a reasonable expectation that the individual's 
employment or continued employment would protect the integrity or 
promote the efficiency of the service. See 5 CFR 731.201. When an 
unfavorable suitability determination is made, OPM or an agency acting 
under delegated authority must determine whether a suitability action 
is appropriate. OPM's regulations define a ``suitability action'' to 
include cancellation of eligibility, removal, cancellation of 
reinstatement eligibility, and debarment. See 5 CFR 731.101(a).
    Suitability standards and procedures are an important part of the 
Federal Government's personnel-vetting framework. They assist agencies 
in identifying and mitigating risks associated with individuals who 
seek access to Federal employment, Federal facilities, Federal 
information, Federal systems, or agency mission functions. Those risks 
may include misconduct, dishonesty, fraud in examination or 
appointment, criminal conduct, violent conduct, or other conduct that 
bears on whether the individual's employment would protect the 
integrity and promote the efficiency of the service. Suitability 
procedures therefore serve both individual and institutional interests: 
they require agencies and OPM to provide notice and an opportunity to 
respond before certain suitability actions are taken, while enabling 
the Government to resolve suitability concerns in a timely and 
effective manner.
    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 launched the Trusted Workforce 2.0 initiative in their 
respective roles as Suitability and Credentialing Executive Agent and 
Security Executive Agent. Trusted Workforce 2.0 reflects the 
Government's continued movement toward modernized vetting, risk 
management, and continuous-vetting processes designed to ensure that 
the Federal workforce remains trusted over time. Modernizing the 
procedures for reviewing suitability actions is part of that broader 
objective: suitability appeals should provide a fair opportunity to 
contest an unfavorable suitability determination and suitability 
action, while also reaching final resolution with sufficient speed to 
protect agency missions, workforce integrity, and the public interest.
    This final rule revises subpart E of part 731. It removes the 
regulatory appeal of suitability actions to MSPB and establishes an OPM 
suitability-action appeal process. Individuals in any covered status--
whether applicant, appointee, or employee, as those terms are used in 
part 731--may no longer appeal a part 731 suitability action to the 
MSPB under subpart E. Instead, an applicant, appointee, or employee in 
the competitive service or career Senior Executive Service may appeal 
to OPM a suitability action taken because of an unfavorable suitability 
determination. This final rule is limited to appeals of suitability 
actions under part 731. It does not establish an appeal right for 
fitness determinations, security-clearance determinations, 
credentialing determinations, national-security eligibility 
determinations, or any other determination outside the scope of subpart 
E.
    OPM separately addressed amendments to subparts A, B, C, and D of 5 
CFR part 731 in the Suitability and Fitness rulemaking. 91 FR 39361 
(June 30, 2026). That rulemaking addressed substantive suitability and 
fitness standards and the authority and procedures for taking 
suitability actions. This final rule is separate from that rulemaking 
and is limited to the forum and procedures for appeals of suitability 
actions. OPM considered comments asserting that the two rulemakings 
should be evaluated together. OPM recognizes that procedural safeguards 
are important in any covered suitability action and, in response to 
comments, has strengthened the final subpart E procedures as described 
below. This

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rule, however, does not itself amend the substantive suitability 
factors, the standards for making suitability or fitness 
determinations, or the procedures in subparts C and D for taking 
suitability actions.
    The statutory and regulatory history of suitability actions 
confirms that suitability actions are distinct from adverse actions 
under chapter 75 of title 5. In 2011, the MSPB decided in Scott v. OPM, 
116 M.S.P.R. 356, modified by 117 M.S.P.R. 467, that suitability 
actions could not be taken for post-appointment conduct. In 2015, the 
U.S. Court of Appeals for the Federal Circuit held in Archuleta v. 
Hopper, 786 F.3d 1340, that a suitability-based removal of a covered 
employee was subject to chapter 75 adverse-action procedures. Later in 
2015, Congress amended 5 U.S.C. 7512 to provide that chapter 75 does 
not apply to ``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.'' Public Law 114-92, div. A, title X, sec. 
1086(f)(9), 129 Stat. 1010. That amendment confirmed that a suitability 
action taken under OPM's regulations is not a chapter 75 adverse 
action.
    This clarifying addition was part of a larger package of reforms in 
the Fiscal Year 2016 National Defense Authorization Act (FY 2016 NDAA) 
designed to improve the speed and effectiveness of Government personnel 
security, suitability, and credentialing reviews. These reforms were 
heavily influenced by Congress's response to tragic events that 
potentially could have been avoided had the Government had more robust 
personnel vetting processes. Following the Washington Navy Yard 
shooting in September 2013, when a trusted insider tragically killed 12 
individuals at a Government facility, Congress held hearings examining 
necessary improvements to vetting processes highlighted by this event 
and other high-profile leaks of information (e.g., the unauthorized 
disclosure and subsequent public release of classified U.S. Government 
information leaked by Edward Snowden to the media), 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 2016 
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.
    Although chapter 75 does not apply to suitability actions taken 
under OPM's regulations, OPM's prior regulations continued to provide 
for MSPB review of suitability actions under subpart E of part 731. The 
MSPB's authority to adjudicate suitability appeals under part 731 
therefore arose from OPM's regulations, not from chapter 75. Under 5 
U.S.C. 1204(a), the MSPB may adjudicate matters placed within its 
jurisdiction by law, rule, or regulation. Accordingly, while OPM's 
prior regulation placed suitability-action appeals within MSPB's 
jurisdiction, OPM may revise that regulatory appeal procedure and 
establish an alternative appeal process consistent with OPM's authority 
to administer the suitability program.
    The final rule does not remove all review of suitability actions. 
Instead, it replaces the prior MSPB appeal route with an OPM appeal 
process tailored to the statutory and regulatory nature of suitability 
actions. OPM concludes that suitability appeals should be decided by 
adjudicators with suitability expertise, under procedures designed for 
suitability determinations and actions rather than chapter 75 adverse-
action litigation. At the same time, OPM agrees with commenters that 
the process must contain safeguards sufficient to promote fairness, 
accuracy, transparency, and confidence in the adjudication--and has 
built such safeguards into the final rule. Those safeguards include:
     A defined right to appeal suitability actions to OPM, 
including challenges to the underlying unfavorable suitability 
determination and specified procedural failures.
     Continued pre-action protections under subparts C and D of 
5 CFR part 731, including written notice, reasons for the action, 
access to relied-upon materials, representation, at least 30 days to 
respond, and a written decision with appeal rights.
     Clear burden and evidentiary standards: the appellant 
bears the burden on timeliness, jurisdiction, and improper procedure; 
the responsible agency bears the burden on the merits; and both are 
governed by a preponderance-of-the-evidence standard.
     A robust record requirement, including a complete, 
indexed, paginated, and certified agency record with mitigating, 
rehabilitative, contradictory, and exculpatory evidence, plus the 
rationale for the action selected.
     Disclosure protections, including service of the record on 
the appellant, privilege-log or index requirements for withheld or 
redacted material, substitute-disclosure procedures where needed, and 
limits on reliance on undisclosed material.
     Separation-of-functions and impartiality safeguards, 
including separation when OPM is the responsible agency, adjudicator 
insulation, ex parte communication protections, conflict 
disqualification, and training requirements.
     ALJ adjudication of appeals by OPM applicants, appointees, 
or employees and limited OPM review of those ALJ decisions;
     Fact-development safeguards, including a written-record 
default, materiality limits on investigations, notice and disclosure of 
investigation results, and hearings before administrative judges 
whenever resolution of a material factual dispute requires evaluation 
of witness credibility or when the written record is otherwise 
insufficient to resolve facts material to the outcome of the appeal.
     Reasoned decision and remedy requirements, including 
findings on each material charge, specification, and suitability 
factor; review of whether sustained grounds support the action imposed; 
and legally authorized corrective relief for prevailing appellants.
     Reconsideration and finality rules, including party 
requests for reconsideration, Director review before finality, and 
specified points at which OPM decisions become final.
     Preservation of matters within the independent 
jurisdiction of the EEOC, FLRA, Inspectors General, MSPB, DOL VETS, and 
OSC.
     Protective-order limits and transparency safeguards, 
including narrow tailoring of protective orders, protection for lawful 
communications, public availability of final merits decisions or de-
identified summaries, and access to final merits decisions for the 
appellant, the appellant's representative, and the representative of 
the involved Federal agency or office with a need to know.

III. Major Issues Raised by Commenters

A. OPM Authority To Transfer Suitability Appeals From MSPB to OPM

    Several commenters questioned OPM's legal authority to remove 
suitability action appeals from the MSPB and asserted that the proposal 
contravenes congressional intent in the CSRA including its creation and 
empowerment of the MSPB.

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    Commenters 0207/0286, 0288, 0303, 0334, 0332, 0314, 0330, 0331, and 
0329 argued that transferring suitability appeals is inconsistent with 
CSRA, collapses the separation between personnel management and 
independent adjudication, and would recreate features of the pre-CSRA 
Civil Service Commission model. Commenter 005 asserted that the 
proposed rule did not adequately identify statutory authority for 
narrowing or eliminating MSPB jurisdiction and argued that OPM had not 
sufficiently explained how the change comports with the CSRA. Commenter 
186 asserted that OPM lacked statutory authority to adjudicate 
suitability cases. Commenter 236 argued that the rule violates 5 U.S.C. 
1204(a)(1), which requires MSPB to handle and decide cases within its 
jurisdiction. Commenter 285 asserted that the proposal circumvents 
protections Congress afforded in Federal employment by removing powers 
from entities such as MSPB and OSC. Commenter 319 argued that OPM's 
reliance on 5 U.S.C. 7512(F) stretches that provision because, in the 
commenter's view, it applies only to pre-appointment matters and does 
not expand the scope of permissible suitability actions. Commenter 332 
argued that OPM's interpretation of 5 U.S.C. 7512(F) is inconsistent 
with Congress's intent in the CSRA and, in connection with OPM's 
related Suitability and Fitness rule, would improperly move matters 
that should be handled under chapter 75 into the suitability process. 
Commenters also emphasized that suitability actions may result in 
removal, cancellation of eligibility, cancellation of reinstatement 
eligibility, or debarment, and therefore warrant review by a 
structurally independent tribunal.
    OPM disagrees that the final rule exceeds OPM's authority or 
conflicts with the CSRA. The comments largely conflate three distinct 
questions: first, the substantive authority to make suitability 
determinations and take suitability actions; second, whether chapter 75 
procedures apply to suitability actions taken under OPM's regulations; 
and third, which administrative forum will review suitability actions 
under part 731. This rule addresses only the third question. It revises 
the administrative appeal procedure in subpart E of part 731. It does 
not independently expand the substantive grounds for taking suitability 
actions, enlarge the categories of positions covered by part 731, 
convert all misconduct into a suitability matter, or displace chapter 
75 when an agency proceeds under chapter 75 rather than under part 731.
    Congress has vested the President with broad authority to regulate 
admission to the civil service, to ascertain the fitness of applicants 
as to age, health, character, knowledge, and ability, and to prescribe 
rules governing the competitive service. See 5 U.S.C. 3301, 3302. 
Congress has also authorized the President to prescribe regulations for 
the conduct of employees in the executive branch. See 5 U.S.C. 7301. 
OPM administers these authorities through governmentwide regulations, 
including 5 CFR part 731. OPM's authority also includes prescribing 
regulations for examinations in the competitive service and 
administering civil service rules and regulations, subject to the 
statutory functions assigned to MSPB and OSC. See 5 U.S.C. 1103(a)(5), 
1302(a).
    The question in this rulemaking is therefore not whether OPM may 
newly create a suitability system. OPM has long administered such a 
system. The question is whether OPM may revise the regulatory forum for 
reviewing suitability actions taken under part 731.
    The statutory structure answers that question. MSPB is not a 
tribunal of plenary jurisdiction. It may hear and decide only those 
matters placed within its jurisdiction by statute, rule, or regulation. 
See 5 U.S.C. 1204(a)(1); 5 U.S.C. 7701(a); Forest v. MSPB, 47 F.3d 409, 
410 (Fed. Cir. 1995); Garcia v. Department of Homeland Security, 437 
F.3d 1322, 1327 (Fed. Cir. 2006). Section 1204(a)(1) does not itself 
assign suitability actions to MSPB; it requires MSPB to hear matters 
that are otherwise within MSPB's jurisdiction. Likewise, section 
7701(a) does not itself make every personnel action appealable to MSPB; 
it provides procedures when an employee or applicant appeals an action 
that is appealable to MSPB ``under any law, rule, or regulation.'' The 
right to a hearing and representation under section 7701(a) attaches 
once an action is otherwise made appealable to MSPB; it does not 
independently create MSPB jurisdiction over actions that no law, rule, 
or regulation makes appealable.
    For part 731 suitability actions, the prior MSPB appeal route was 
regulatory. The Federal Circuit recognized this point in Folio v. 
Department of Homeland Security, explaining that the Board's 
jurisdiction ``is not plenary, but is limited to those matters over 
which it has been given jurisdiction by law, rule, or regulation,'' and 
that former 5 CFR 731.501 ``pertains to appeals of agency suitability 
determinations to the Board and sets out that jurisdiction.'' 402 F.3d 
1350, 1353 (Fed. Cir. 2005). The court further observed that section 
731.501 was the regulation that made the suitability determination 
appealable to MSPB under section 7701(a). Id. at 1356. Thus, before 
this final rule, MSPB jurisdiction over part 731 suitability appeals 
existed because OPM's regulation placed those appeals before MSPB. It 
did not exist because chapter 75 independently required MSPB review of 
part 731 suitability actions. Because the prior MSPB appeal route was 
regulatory, OPM may revise that regulatory choice through notice-and-
comment rulemaking.
    OPM also disagrees with commenters who argue that 5 U.S.C. 7512(F) 
has no bearing on this rule. Section 7512(F) provides that chapter 75's 
adverse-action provisions do not apply to ``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.'' Congress added that 
language after the MSPB's decision in Scott v. OPM, 116 M.S.P.R. 356 
(2011), modified by 117 M.S.P.R. 467 (2012), and the Federal Circuit's 
decision in Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015). In 
Archuleta, the Federal Circuit held that, because then-existing chapter 
75 did not exclude suitability-based removals, a covered employee's 
OPM-directed suitability removal was subject to chapter 75 adverse-
action review. See Archuleta, 786 F.3d at 1348-51. Congress responded 
by adding section 7512(F). See Public Law 114-92, div. A, title X, sec. 
1086(f)(9), 129 Stat. 1010.
    OPM does not read section 7512(F) as a freestanding source of 
substantive suitability authority, and this final rule does not depend 
on such a reading. Section 7512(F) addresses chapter 75 coverage. It 
confirms that when OPM lawfully proceeds through a suitability action 
under OPM's regulations and applicable Presidential rules for the 
administration of the competitive service, that action is not an 
adverse action under chapter 75. The substantive standards for 
suitability determinations and suitability actions remain those 
prescribed in part 731 and supported by the underlying civil service 
authorities, including 5 U.S.C. 3301, 3302, and 7301. This final rule 
merely prescribes the administrative review mechanism for those 
actions. It does not rely on section 7512(F) to expand the conduct that 
may support a suitability action, to enlarge the class of covered 
employees, or to convert ordinary chapter 75 matters into suitability 
actions.
    Nor does section 7512(F) need to do more than that for purposes of 
this final

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rule. The relevant point is narrower: where OPM or an agency proceeds 
under part 731 and the action is a suitability action within the 
meaning of part 731, chapter 75 does not compel MSPB review. Former 
subpart E nevertheless provided MSPB review as a matter of regulation. 
This final rule revises that regulatory appeal path by establishing an 
OPM appeal process. Because the statute does not itself require MSPB 
review of part 731 suitability actions, OPM's revision of its own 
regulations does not unlawfully eliminate a statutory MSPB appeal 
right.
    OPM further disagrees that the CSRA's creation of MSPB as an 
independent adjudicatory body freezes in place every regulatory grant 
of MSPB jurisdiction that existed at or after the time of the CSRA. OPM 
recognizes that the CSRA separated personnel-management functions from 
many adjudicatory functions and created MSPB to adjudicate matters 
within its jurisdiction. But that integrated scheme itself makes MSPB 
jurisdiction dependent on statute, rule, or regulation. See 5 U.S.C. 
1204(a)(1), 7701(a). Congress could have provided that all suitability 
actions under part 731 must always be reviewed by MSPB. It did not. 
Instead, it preserved a structure in which MSPB hears matters placed 
within its jurisdiction by law, rule, or regulation, and former Sec.  
731.501 was the regulation that placed part 731 suitability appeals 
before MSPB. A regulatory forum choice does not become irrevocable 
merely because it has existed for a long period of time.
    OPM also does not agree that establishing an OPM appeal process 
recreates the pre-CSRA Civil Service Commission or collapses the civil 
service remedial structure into OPM. This rule does not give OPM 
general authority to adjudicate all Federal employment disputes. It 
establishes an OPM-administered process for a narrow class of appeals 
involving suitability actions under part 731. MSPB remains responsible 
for matters placed within its jurisdiction by statute, rule, or 
regulation. OSC, EEOC, FLRA, Inspectors General, the Department of 
Labor's Veterans' Employment and Training Service, and other forums 
remain available where an independent legal basis for jurisdiction 
exists. Revised Sec.  731.501(e) expressly provides that the part 731 
appeal process is the sole means of appealing a suitability action 
under part 731, but does not otherwise preclude an applicant, 
appointee, or employee from filing a complaint, appeal, or other matter 
within the independent jurisdiction of those entities.

B. Separation of Policymaking and Adjudication Functions and Adequacy 
of OPM as a Suitability Appeals Forum

    Several commenters, including commenters 0005, 0046, and 0057, 
argued that the proposed OPM appeal process would not provide 
sufficiently impartial review because OPM issues suitability policy, 
may take or direct suitability actions, and would adjudicate appeals 
from those actions. Commenters also asserted that the proposed 
``appropriate independence'' standard was insufficiently defined and 
did not adequately explain how OPM appeal adjudicators would be 
insulated from prior involvement, institutional pressure, supervisory 
influence, or case-specific direction. Other commenters similarly 
argued that transferring suitability appeals to OPM would collapse the 
separation between personnel management and independent adjudication 
that Congress adopted in the CSRA.
    OPM does not agree that an OPM-administered suitability appeal 
process is inherently biased, creates an impermissible conflict of 
interest, or is inconsistent with the CSRA. Congress created MSPB as an 
independent adjudicatory body for matters within MSPB's jurisdiction, 
but the CSRA does not require every regulatory personnel appeal to be 
adjudicated by MSPB. As explained above, MSPB jurisdiction is limited 
to matters placed within its jurisdiction by law, rule, or regulation. 
See 5 U.S.C. 1204(a)(1), 7701(a). Prior MSPB jurisdiction over part 731 
suitability appeals arose from OPM's regulations, not from chapter 75 
itself. OPM therefore may revise the regulatory appeal forum for part 
731 suitability actions, provided that the resulting process is fair, 
reasoned, and consistent with applicable law.
    Nor does the fact that OPM administers civil service laws and 
regulations make OPM categorically incapable of adjudicating disputes 
under those laws. Congress vested the OPM Director with responsibility 
for executing, administering, and enforcing civil service rules and 
regulations and laws governing the civil service. See 5 U.S.C. 1103(a). 
OPM has long exercised adjudicative or quasi-adjudicative 
responsibilities in Federal personnel matters, including classification 
appeals under 5 CFR part 511, Fair Labor Standards Act claims under 5 
CFR part 551, compensation and leave claims under 5 CFR part 178, and 
other matters assigned to OPM by statute or regulation. The existence 
of such functions does not transform OPM into an improper adjudicator; 
rather, it reflects a familiar feature of Federal administration in 
which agencies apply and adjudicate matters within programs they 
administer.
    Other Federal agencies operate in the same manner. For example, the 
EEOC issues Federal-sector EEO regulations and adjudicates appeals from 
agency final actions, dismissals, class-complaint decisions, and 
certain grievance decisions raising discrimination issues. See 29 CFR 
1614.401, 1614.405. The FLRA provides governmentwide leadership on 
Federal labor-management relations while resolving representation, 
negotiability, unfair-labor-practice, and arbitration matters. See 5 
U.S.C. 7105. These examples illustrate that combining regulatory, 
guidance, supervisory, and adjudicatory responsibilities within a 
single agency is not, standing alone, evidence of structural bias.
    Supreme Court precedent confirms the same point. The Court has 
rejected the proposition that combining investigative, policymaking, 
prosecutorial, and adjudicative functions within an agency inherently 
violates due process. In Withrow v. Larkin, the Court explained that a 
party asserting unconstitutional bias in administrative adjudication 
must overcome the presumption of honesty and integrity of adjudicators 
and show a risk of actual bias or prejudgment that is constitutionally 
intolerable. 421 U.S. 35, 47 (1975). The Court likewise has rejected 
claims that agency decisionmakers are disqualified merely because they 
previously investigated or expressed policy views about related issues. 
FTC v. Cement Institute, 333 U.S. 683, 700-03 (1948). Due process 
concerns arise from more concrete circumstances, such as a direct, 
personal, substantial pecuniary interest, personal participation in the 
matter under review, personal animus, or an objectively intolerable 
probability of actual bias. See Tumey v. Ohio, 273 U.S. 510, 523, 532 
(1927); Withrow, 421 U.S. at 47; Caperton v. A.T. Massey Coal Co., 556 
U.S. 868, 884-87 (2009).
    The APA reflects a similar principle. Even in formal adjudications 
governed by the APA, an agency may review an initial decision and, on 
review, generally has the powers it would have had in making the 
initial decision, subject to limits imposed by rule or notice. See 5 
U.S.C. 557(b). The APA's separation-of-functions provision also does 
not apply to ``the agency or a member or members of the body comprising 
the agency.'' 5 U.S.C. 554(d)(2)(C). Although this part does not make 5 
U.S.C. 554, 556, or 557 applicable except to the extent

[[Page 49039]]

independently required by law or expressly incorporated, these 
provisions underscore that Federal administrative law does not treat 
agency-head supervision or agency-level review as equivalent to bias. 
The relevant inquiry is whether the process contains adequate 
safeguards against prejudgment, improper influence, ex parte 
communications, and conflicts of interest.
    Nor does the fact that OPM is headed by a presidentially appointed 
Director establish bias. The OPM Director is appointed by the President 
with the advice and consent of the Senate. See 5 U.S.C. 1102. That 
appointment structure does not itself disqualify the Director or the 
agency from carrying out adjudicatory responsibilities assigned by law 
or regulation. Federal administrative adjudication frequently occurs 
within agencies headed by presidentially appointed officials, including 
agencies that also issue regulations and enforce the statutory schemes 
they administer. Indeed, the MSPB consists of three members appointed 
by the President with Senate confirmation. See 5 U.S.C. 1201. Due 
process does not require every administrative appeal to be decided by 
an entity outside the Executive Branch; it requires procedures that 
provide a meaningful opportunity to be heard before a fair 
decisionmaker. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
    OPM recognizes the importance of separating the personnel involved 
in taking a suitability action from the personnel assigned to 
adjudicate an appeal of that action. The revised regulatory text 
therefore does not rely solely on general assurances of internal 
separation. The revised regulatory text replaces the proposed rule's 
more general ``appropriate independence'' formulation with specific, 
codified safeguards. Section 731.503(b)(2) now defines the 
``responsible agency'' to include the employing agency or, when OPM 
took, directed, or made the suitability action under review, the OPM 
office or component responsible for that action. When OPM is the 
responsible agency, the adjudicative function must be separated from 
any OPM office or official that participated personally and 
substantially in the suitability determination or action.
    The final rule also codifies individual adjudicator protections. 
Section 731.505(a) requires OPM personnel assigned to adjudicate 
appeals to be insulated from officials who participated personally and 
substantially in the challenged action or provided case-specific advice 
concerning that action. It prohibits OPM adjudicators from considering 
material ex parte communications concerning the merits of an appeal. If 
such a communication occurs, OPM must place a summary in the record and 
provide the parties a reasonable opportunity to respond, unless 
disclosure is prohibited by law. The rule also disqualifies any OPM 
employee who has a prior relationship with the appellant, had prior 
involvement in the suitability determination or suitability action 
under appeal, or has any other conflict that would reasonably call the 
employee's impartiality into question.
    OPM has also strengthened the rule for cases in which the appellant 
is an OPM applicant, appointee, or employee. In those appeals, OPM will 
assign an administrative law judge to adjudicate the appeal. To further 
insulate those appeals from agency involvement, OPM will not disturb 
the administrative law judge's initial decision unless a party shows 
harmful procedural irregularity, clear legal error, or material factual 
error that affected the outcome. In addition, an administrative judge 
will preside over any hearing held under the ascertainment-of-facts 
provision, and the hearing will be limited to material factual issues 
identified by OPM or the administrative judge as necessary to resolve 
the appeal.
    The final rule also addresses commenters' concerns about expertise 
and decisional quality. Section 731.505(c) requires all OPM employees 
or administrative law judges assigned to adjudicate appeals under this 
subpart to have completed training that complies with national training 
standards for suitability adjudicators and qualifies them to review OPM 
and agency suitability determinations and actions. The rule further 
requires a complete, indexed, paginated, and certified record of the 
action; allocates burdens of proof; requires findings on each material 
charge, specification, and suitability factor; and authorizes 
appropriate relief where the appellant prevails. These features 
reinforce that the process is not intended to be a summary affirmance 
mechanism or a ``rubber stamp,'' but a specialized administrative 
appeal process focused on whether the responsible agency has 
established the suitability determination and action by a preponderance 
of the evidence and whether the appellant has established any 
appealable procedural defect.
    OPM also considered comments objecting to Director review. The 
final rule explains the circumstances in which Directorial review is 
called for. The Director may reopen and reconsider an initial decision 
or reopened-and-reconsidered decision only before it becomes final. In 
deciding whether to exercise that authority, the Director may consider 
whether the decision contains clear legal error, rests on an erroneous 
finding of material fact, involves an issue of exceptional importance, 
affects governmentwide administration of the civil service laws, rules, 
regulations, or OPM policy, creates a conflict among OPM decisions, or 
otherwise warrants Director review. The rule also makes clear that 
there is no right to request Director review. These limitations provide 
transparency about when Director review is contemplated.
    Ultimately, OPM concludes that the final rule provides a fair and 
reasoned adjudicatory process for suitability appeals. Suitability 
appeals require application of OPM's governmentwide suitability 
regulations and standards, and OPM is responsible for prescribing, 
interpreting, and administering those standards. At the same time, the 
final rule recognizes the importance of separating personnel involved 
in taking or directing a suitability action from personnel assigned to 
adjudicate an appeal of that action. The final rule therefore codifies 
separation-of-functions, ex parte, conflict-of-interest, ALJ, training, 
record-production, burden-of-proof, hearing, decision-writing, and 
transparency safeguards. OPM concludes that these safeguards adequately 
address commenters' impartiality concerns while preserving a 
specialized and efficient appeal process for part 731 suitability 
actions.

C. Due Process Considerations, Written Record, Hearings, and Discovery

    OPM received several comments expressing concern that transferring 
suitability-action appeals from MSPB to OPM would provide insufficient 
independent review for individuals subject to suitability actions. 
Commenter 0193 contended that limiting external review may undermine 
veterans' confidence that veterans' preference rights under 5 U.S.C. 
3330a will receive fair and independent consideration. Commenter 0195 
asserted that the proposed rule creates an inherent structural risk or 
appearance of bias inconsistent with constitutional requirements for 
neutral decisionmakers because both the initial decisionmakers and 
reviewers ultimately report within OPM. Commenter 0195 also asserted 
that eliminating Federal Circuit review would violate constitutional 
due-process requirements. Commenter 0329 asserted that OPM cannot 
foreclose review in higher or alternative forums and that the proposed 
rule may increase litigation. Commenter 0332 argued that,

[[Page 49040]]

because MSPB decisions are currently subject to Federal Circuit review, 
replacing MSPB review with an OPM final decision risks insulating 
suitability determinations from meaningful judicial scrutiny.
    OPM has carefully considered these comments but disagrees that the 
final rule is inconsistent with due process or otherwise provides 
insufficiently fair review. With respect to veterans' preference, this 
rule concerns only the procedures for appealing suitability actions 
under 5 CFR part 731. It does not amend, limit, or adjudicate rights or 
remedies arising under the veterans' preference statutes, including 5 
U.S.C. 3330a. Section 731.501(e) has been revised to make this point 
clearer: the procedures in subpart E are the sole means of appealing a 
suitability action under part 731, but do not otherwise preclude an 
applicant, appointee, or employee from filing a complaint, appeal, or 
other matter within the independent jurisdiction of the Department of 
Labor's Veterans' Employment and Training Service, the MSPB, the EEOC, 
the FLRA, an Inspector General, or OSC. Thus, the final rule does not 
displace veterans' preference remedies or other independent statutory 
forums.
    OPM also disagrees that due process requires suitability appeals to 
be adjudicated by MSPB, by an inferior officer, or by an adjudicator 
outside OPM. The relevant constitutional inquiry is whether the 
procedures, taken as a whole, provide a meaningful opportunity to be 
heard before a fair decisionmaker. Administrative agencies may 
adjudicate matters within programs they administer, and combining 
policymaking, investigative, enforcement, and adjudicative functions in 
the same agency does not by itself violate due process. See Withrow v. 
Larkin, 421 U.S. at 47-52. The Supreme Court has emphasized that 
adjudicators are presumed to act with honesty and integrity, and due 
process is concerned with concrete risks of actual bias or prejudgment, 
not the mere fact that adjudicators serve within the same agency that 
administers the relevant program. See Mathews v. Eldridge, 424 U.S. 
319, 333-35 (1976); Richardson v. Perales, 402 U.S. 389, 402, 407-08 
(1971).
    At the same time, OPM agrees that the final rule should contain 
clear safeguards against prejudgment, improper influence, undisclosed 
evidence, and institutional bias. The final rule therefore adds 
substantial protections beyond those contained in the proposed rule. It 
defines the ``responsible agency'' to include the employing agency or, 
when OPM took, directed, or made the suitability action under review, 
the OPM office or component responsible for that action. When OPM is 
the responsible agency, the final rule requires the adjudicative 
function to be separated from any OPM office or official that 
participated personally and substantially in the suitability 
determination or action. The final rule also requires adjudicators to 
be insulated from officials who participated personally and 
substantially in the challenged action or provided case-specific 
advice; prohibits adjudicators from considering material ex parte 
communications concerning the merits unless the communication is placed 
in the record and the parties receive a reasonable opportunity to 
respond, unless disclosure is prohibited by law; and bars assignment of 
an adjudicator who had prior involvement in the action, a prior 
relationship with the appellant, or another conflict reasonably calling 
impartiality into question. These provisions respond directly to 
comments asserting that the proposed rule did not define ``appropriate 
independence'' with sufficient precision.
    The final rule adds additional safeguards for cases involving OPM's 
own applicants, appointees, and employees. In those cases, OPM will 
assign an administrative law judge to adjudicate the appeal, and OPM 
will not disturb the ALJ's initial decision unless a party shows 
harmful procedural irregularity, clear legal error, or material factual 
error that affected the outcome. The final rule also requires an 
administrative judge to preside over any hearing held under the 
ascertainment-of-facts provision. These provisions are not 
constitutionally required in every administrative appeal, but OPM has 
included them to further strengthen decisional independence and public 
confidence in the appeal process.
    The constitutional adequacy of the final rule is best evaluated 
under the balancing framework set out in Mathews, which considers the 
private interest affected, the risk of erroneous deprivation and 
probable value of additional procedures, and the Government's interest, 
including administrative burden. Due process is flexible and calls for 
the procedures the particular situation demands. See Gilbert v. Homar, 
520 U.S. 924, 930-31 (1997). OPM recognizes that suitability actions 
can have significant consequences, including removal, cancellation of 
eligibility, cancellation of reinstatement eligibility, or debarment. 
The final rule therefore provides notice, an opportunity to respond, 
representation, access to the materials relied upon, production of a 
complete record, an opportunity to reply, written adjudication, burden-
of-proof standards, additional fact development where necessary, 
hearings where material factual disputes, including witness-credibility 
disputes, cannot be resolved on the developed written record, 
reconsideration, and appropriate relief where the appellant prevails. 
Those procedures, taken together, adequately reduce the risk of 
erroneous deprivation while preserving the Government's strong interest 
in resolving suitability issues efficiently and protecting the 
integrity and efficiency of the service.
    Commenters 0303, 0334, 0332, 0333, and 0329 argued that eliminating 
MSPB discovery would exacerbate information asymmetry between 
appellants and agencies. Commenters asserted that the agency or OPM 
will control most relevant documents and witnesses, while appellants 
may lack access to evidence needed to show factual error, pretext, 
retaliation, or procedural irregularity. Commenters 0052 and 0060 
expressed concern that written-record review and limitations on 
hearings would reduce procedural protections because suitability 
determinations may involve credibility assessments, subjective intent, 
character evidence, or disputed facts that are difficult to evaluate 
without live testimony, cross-examination, or in-person presentation of 
evidence. Commenters 0025 and 0053 similarly expressed concern that 
eliminating MSPB-style discovery would restrict appellants' ability to 
obtain information needed to challenge the suitability determination.
    OPM agrees in part and has revised the final rule to reduce the 
risk of error while retaining a streamlined process. OPM declines to 
provide automatic discovery or an automatic hearing in every part 731 
appeal. Suitability appeals under this subpart concern limited 
regulatory issues: whether the unfavorable suitability determination 
that resulted in a suitability action is supported, whether the 
suitability action is substantively proper, and whether the responsible 
agency failed to provide specified procedural protections. A default 
written-record process is proportionate to those issues, particularly 
because suitability determinations often turn on application materials, 
investigative records, employment records, court records, written 
notices, written responses, and other documentary evidence. Written 
procedures can satisfy due process where the issues can be fairly 
resolved on a written record, and

[[Page 49041]]

the Supreme Court has recognized in administrative adjudication that 
written evidence may support agency decisionmaking without violating 
due process. See Richardson, 402 U.S. at 402, 407-08.
    The final rule, however, does not leave appellants confined to a 
record unilaterally selected by the responsible agency. The rule 
requires the responsible agency to file a complete, indexed, paginated, 
and certified record of the action. That record must include all 
documents considered, relied upon, generated, received, issued, or 
served in investigating, proposing, deciding, directing, or 
effectuating the unfavorable suitability determination and resulting 
suitability action, regardless of whether the documents are maintained 
by the employing agency, OPM, an OPM component, or another authorized 
investigative or personnel-vetting entity. The required record must 
include, as applicable, status and appointment documents, investigative 
and vetting materials, charge-by-charge analysis, suitability-factor 
analysis, consideration of mitigating, rehabilitative, contradictory, 
or exculpatory evidence, the rationale for the action selected, final-
decision materials, implementation documents, and a certification that 
the submitted record is complete. This record-production requirement is 
a significant safeguard against the information-asymmetry concerns 
raised by commenters.
    The final rule also strengthens disclosure protections. The 
responsible agency must serve the appellant with the agency record. If 
documents are withheld, redacted, or protectively handled, the 
responsible agency must identify them in an index or privilege log 
unless identifying the document itself is prohibited by law. OPM may 
require a summary, substitute disclosure, protective order, in camera 
submission, or other procedure sufficient to provide the appellant a 
meaningful opportunity to respond, consistent with applicable law. The 
final rule provides that no nondisclosed material may be relied upon to 
affirm the suitability action unless the appellant has received notice 
of the substance of the material and a meaningful opportunity to 
respond, except as otherwise authorized by law. These provisions 
directly address concerns that appellants could be unable to know or 
rebut the evidence used against them.
    OPM has also revised the hearing and fact-development provisions. 
The final rule authorizes OPM to require either party to provide 
additional information and to investigate the facts underlying the 
unfavorable suitability determination or suitability action when the 
existing record is insufficient to resolve a material issue within 
OPM's jurisdiction and the investigation is reasonably likely to 
produce material information. When OPM conducts an investigation, it 
must notify the appellant, the appellant's representative, and the 
responsible agency (and, if different, the employing agency) of the 
investigation and the nature of the information requested, provide the 
results of the investigation to the parties, and give them a reasonable 
opportunity to submit argument or additional information.
    The final rule further provides objective criteria for hearings. 
OPM's review must be based solely on the developed written record 
unless the written record is insufficiently developed to resolve one or 
more facts material to the outcome of the appeal, including when 
resolution of a material factual dispute requires evaluation of witness 
credibility. In those circumstances, a hearing is required: OPM will 
assign an administrative judge to preside over the hearing, which will 
be limited to the material factual issues identified by OPM or the 
administrative judge as necessary to resolve the appeal. These 
revisions respond to comments requesting defined hearing criteria while 
avoiding unnecessary hearings where the developed written record is 
sufficient.
    OPM recognizes that oral presentation and cross-examination can 
have particular value where credibility or veracity is central. See 
Goldberg v. Kelly, 397 U.S. 254, 269-70 (1970). The final rule accounts 
for that concern by directing hearings where witness credibility is 
material to the outcome and cannot be resolved fairly on the written 
record. There will be cases in which uncontested objective facts are 
sufficient to resolve a suitability appeal--for example, where the 
appellant has been convicted of a disqualifying criminal offense. The 
final rule does not require a superfluous hearing in those cases. But 
where material facts are in dispute, particularly where resolution of 
the dispute requires evaluation of witness credibility, the rule 
provides for a hearing before an administrative judge. OPM declines, 
however, to adopt a categorical right to a hearing in every suitability 
appeal, including every removal or debarment case. Under Mathews, due 
process does not require the maximum possible procedure in every case; 
it requires procedures reasonably tailored to the interests, risks, and 
governmental burdens at issue. The final rule's material-dispute 
standard provides hearings where they are likely to improve decisional 
accuracy, while avoiding proceedings that would add cost and delay 
without meaningful benefit.
    The final rule also adds several safeguards beyond record 
production, disclosure, and hearings. It expressly allocates burdens of 
proof: the appellant bears the burden to establish timeliness, OPM 
jurisdiction, and any improper-procedure claim, while the responsible 
agency bears the burden to establish, by a preponderance of the 
evidence, the charge or charges supporting the unfavorable suitability 
determination and the substantive propriety of the suitability action. 
It requires adjudicators and ALJs assigned to appeals to have completed 
training that complies with national training standards for suitability 
adjudicators. It requires written initial decisions that may affirm, 
reverse, modify, vacate, or remand the action in whole or in part and 
that must make findings on each material charge, specification, and 
suitability factor. If fewer than all charges or specifications are 
sustained, OPM must determine whether the sustained grounds support the 
action imposed and may affirm, reverse, modify, vacate, or remand as 
appropriate.
    The final rule further provides remedies where the appellant 
prevails, including correction, cancellation, or modification of the 
suitability action; correction of relevant records; prospective 
eligibility or appointment-related relief; and, where legally 
authorized, back pay, interest, and reasonable attorney fees. It limits 
protective orders and cease-and-desist directives to matters necessary 
to protect the integrity of the adjudicatory process, prevent threats, 
intimidation, targeted harassment, improper witness contact, disclosure 
of protected personal information, or misuse of nonpublic information 
obtained through the appeal. Any protective order must be no broader 
than reasonably necessary and must not restrict lawful communications 
protected by law. The rule also provides for reconsideration based on 
material factual error, legal error, new and material evidence or legal 
argument that was unavailable despite due diligence, or good cause; 
limits Director review to decisions that have not yet become final; 
identifies considerations that may warrant Director review; clarifies 
finality; and requires public availability of final merits decisions or 
de-identified

[[Page 49042]]

summaries consistent with FOIA, the Privacy Act, and other applicable 
law.
    OPM concludes that the procedures adopted in the final rule are 
adequate and proportionate for the limited issues appealable under part 
731. The final rule does not simply replace MSPB review with summary 
internal review. It creates a specialized suitability-appeal process 
with express burden allocations, separation-of-functions protections, 
ex parte safeguards, adjudicator-disqualification rules, ALJ 
protections where appropriate, a complete certified record, disclosure 
and substitute-disclosure requirements, a bar on reliance on 
undisclosed material absent notice and a meaningful opportunity to 
respond except as authorized by law, objective criteria for 
investigations and hearings, administrative judge-presided hearings, 
written findings on material charges and suitability factors, 
reconsideration standards, remedies, and transparency provisions. OPM 
therefore concludes that the final rule provides a fair and meaningful 
opportunity to challenge a part 731 suitability action while also 
serving the Government's interest in timely, consistent, and expert 
resolution of suitability appeals.

D. Claims of Politicization, Merit System Harm, and Whistleblower 
Reprisal

    OPM received comments that characterized the proposed rule as anti-
democratic. See comments 010 and 213. Commenters 008 and 009 also 
expressed concern that moving suitability action appeals from MSPB to 
OPM would politicize the suitability appeals process. Commenters 0004 
and 0285 expressed concern that moving suitability appeals from MSPB to 
OPM could weaken whistleblower protections, discourage employees from 
reporting waste, fraud, abuse, or corruption, and limit access to 
independent review or other legal protections. Commenter 0285 also 
appeared to assert that the proposed rule would remove appeal rights 
and prevent appellants from seeking review of unfavorable suitability 
determinations and to raise broader concerns about OPM removing powers 
from entities such as MSPB and OSC in this area.
    OPM disagrees that this rule is anti-democratic or that it 
politicizes the suitability action appeals process. The rule does not 
authorize suitability determinations or suitability actions based on 
political affiliation, political viewpoint, voting history, partisan 
activity, or disagreement with agency leadership. Suitability 
determinations continue to be based on the specific suitability factors 
in 5 CFR 731.202(b) and on whether the individual's character or 
conduct may adversely affect the integrity or efficiency of the 
service. In addition, pursuant to section 731.102(c), suitability 
determinations and actions under part 731 must be applied consistent 
with the Merit Systems Principles in 5 U.S.C. 2301 and the prohibited 
personnel practices in 5 U.S.C. 2302(b). Those requirements prohibit 
the use of suitability procedures for partisan political purposes or 
other unlawful personnel practices.
    OPM also rejects the contention that MSPB review is any more or 
less independent than OPM review. Like MSPB, OPM is an independent 
agency. 5 U.S.C. 1101. Both MSPB and OPM leadership are appointed by 
the President with Senate consent. Further, both MSPB Members and the 
OPM Director are equally accountable to and serve at the pleasure of 
the President.\1\ The principal difference between MSPB and OPM is that 
the MSPB is led by three Presidentially-appointed members while OPM is 
headed by a single Presidentially-appointed director. But the MSPB's 
tripartite leadership structure does not make it meaningfully more 
independent than OPM; both agencies are equally subject to Presidential 
supervision. Consequently, OPM rejects the argument that greater MSPB 
independence makes it a more appropriate venue for suitability appeals 
as the premise is inaccurate.
---------------------------------------------------------------------------

    \1\ See Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025); see 
also Trump v. Slaughter, No. 25-332 (June 29, 2026).
---------------------------------------------------------------------------

    OPM agrees with commenters that statutory whistleblower protections 
and prohibitions against whistleblower retaliation are important. 
Nothing in this final rule authorizes OPM or an agency to take a 
suitability action because an individual made a protected disclosure or 
engaged in protected whistleblowing activity. Further, nothing in this 
rule alters the statutory prohibition on retaliation for protected 
disclosures and protected activity, see 5 U.S.C. 2302(b)(8)-(9), the 
OSC's authority to receive and investigate allegations of prohibited 
personnel practices, see 5 U.S.C. 1214(a)(1)(A), or any individual 
right of action before MSPB that otherwise exists. 5 U.S.C. 1221.
    Nor does the rule eliminate an individual's ability to challenge a 
suitability action. Rather, the rule changes the forum for suitability 
action appeals and establishes an OPM appeals process. Under that 
process, an appellant may contest the unfavorable suitability 
determination and may challenge whether the required suitability action 
procedures were followed. OPM will review the record using the 
preponderance of the evidence standard and may affirm, reverse, modify, 
vacate, or remand the action, in whole or in part.
    OPM also disagrees that adjudication by OPM creates a politicized 
process or weakens whistleblower protections. The final rule also adds 
safeguards that directly address concerns about pretext, retaliation, 
and rubber-stamp review. The responsible agency must prove, by a 
preponderance of the evidence, the charge or charges supporting the 
unfavorable suitability determination and the substantive propriety of 
the suitability action. The appellant may challenge specified 
procedural failures. The responsible agency must provide a complete, 
indexed, paginated, and certified record, including the charge-by-
charge analysis, suitability-factor analysis, consideration of 
mitigating, rehabilitative, contradictory, or exculpatory evidence, and 
the rationale for the action selected. OPM may not rely on nondisclosed 
material to affirm a suitability action unless the appellant receives 
notice of the substance of the material and a meaningful opportunity to 
respond, except as otherwise authorized by law. The final rule includes 
procedural safeguards intended to support impartial review, including 
separation between personnel involved in taking the suitability action 
and personnel assigned to adjudicate the appeal, training requirements 
for personnel adjudicating appeals, minimum requirements for the 
contents of the responsible agency's record, written decisions, and 
standards governing review of the record.
    OPM also revised the final rule to make clear that the part 731 
appeal process does not displace matters within the independent 
jurisdiction of the EEOC, FLRA, Inspectors General, MSPB, VETS, and 
OSC. Thus, allegations of discrimination, retaliation, whistleblower 
reprisal, labor-relations violations, veterans' rights violations, or 
other prohibited personnel practices remain subject to the procedures 
and remedies Congress assigned to those forums. Evidence of improper 
motive may also be considered in a part 731 appeal to the extent 
relevant to whether the charged suitability factor is supported, 
whether the suitability action is substantively proper, or whether the 
appellant has established an appealable procedural defect.
    For these reasons, OPM declines to retain MSPB review based on 
comments

[[Page 49043]]

asserting that the OPM appeal process is anti-democratic or politically 
motivated. The final rule does not introduce political criteria into 
suitability adjudication. Nor does it displace existing whistleblower 
protections and related statutory remedies. Instead, it establishes a 
specialized administrative appeal process while preserving the 
requirement that suitability determinations and actions be based on 
conduct relevant to the integrity or efficiency of the service and be 
applied consistently with the merit system principles and prohibited 
personnel practices.

E. Exclusion of Mixed Cases

    Commenters 0334, 0332, 0303, and 0329 argued that eliminating MSPB 
review would fragment mixed-case adjudication, weaken civil-rights 
enforcement, and require employees to litigate related facts in 
multiple forums. Commenters also expressed concern that individuals 
alleging discrimination, retaliation, whistleblower reprisal, veterans' 
rights violations, labor-relations violations, or other prohibited 
personnel practices would lack meaningful remedies.
    OPM acknowledges that a suitability action may arise from facts 
that also form the basis of a discrimination claim, prohibited-
personnel-practice allegation, whistleblower reprisal claim, veterans' 
rights claim, labor-relations matter, or other statutory cause of 
action. OPM disagrees, however, that part 731 must preserve an MSPB 
``mixed case'' route for those claims. The mixed-case framework in 5 
U.S.C. 7702 and 29 CFR 1614.302 applies where an employee or applicant 
has been affected by an action that is otherwise appealable to MSPB and 
alleges covered discrimination. Once this final rule removes the 
regulatory MSPB appeal for part 731 suitability actions, a part 731 
suitability appeal is no longer an MSPB appeal to which the mixed-case 
procedures attach. Cases such as Kloeckner v. Solis, 568 U.S. 41 
(2012), and Perry v. MSPB, 582 U.S. 420 (2017), address routing and 
review of statutory mixed cases; they do not require OPM to retain a 
regulatory MSPB appeal for suitability actions where no statute 
independently requires one.
    This rule does not eliminate independent statutory remedies. OPM 
revised Sec.  731.501(e) to make clear that the part 731 appeal process 
is the sole means of appealing a suitability action under part 731, but 
does not otherwise preclude an applicant, appointee, or employee from 
filing a complaint, appeal, disclosure, grievance, or other matter 
within the independent jurisdiction of the EEOC, FLRA, an Inspector 
General, MSPB, the Department of Labor's Veterans' Employment and 
Training Service, or OSC. Thus, discrimination claims remain subject to 
the Federal-sector EEO process; prohibited-personnel-practice and 
whistleblower-reprisal matters remain subject to OSC and MSPB 
jurisdiction where applicable; veterans' rights matters remain subject 
to the governing VETS and MSPB procedures; and labor-relations matters 
remain subject to the statutory framework Congress assigned to the FLRA 
or other appropriate forum.
    OPM will adjudicate the issues assigned to it under part 731: 
whether the unfavorable suitability determination is supported, whether 
the resulting suitability action is substantively proper, and whether 
the appellant has established an appealable procedural defect. OPM will 
not adjudicate independent claims of discrimination, retaliation, 
whistleblower reprisal, veterans' rights violations, or labor-law 
violations in a part 731 appeal. Evidence of discriminatory or 
retaliatory motive, however, may be considered to the extent it is 
relevant to the part 731 issues before OPM, including whether the 
charged suitability factor is supported, whether the action selected is 
substantively proper, or whether the appellant has established improper 
procedure.
    This allocation of claims reflects, rather than undermines, the 
structure of the civil service remedial scheme. Congress has not 
created a single universal forum for every Federal employment dispute. 
Different forums decide different legal questions under different 
statutes, standards, procedures, and remedial schemes. A discrimination 
claim, a prohibited-personnel-practice claim, a USERRA or VEOA claim, a 
labor-relations claim, and a part 731 suitability appeal may involve 
overlapping facts, but they are not the same claim. Routing those 
claims to the entities Congress assigned to administer them preserves 
specialized expertise and avoids requiring OPM to decide matters 
outside the scope of part 731.
    OPM also disagrees that this structure improperly duplicates 
proceedings or conceals unlawful conduct. Where an individual pursues 
multiple avenues of redress, some evidence may overlap, but the legal 
inquiries differ. In a part 731 appeal, OPM determines whether the 
suitability action satisfies part 731. In an EEO matter, the 
responsible agency and EEOC framework determine whether 
antidiscrimination law was violated. In an OSC, MSPB, FLRA, VETS, or 
Inspector General matter, the relevant entity applies the statute and 
procedures governing that matter. The final rule preserves those 
independent channels and does not alter their jurisdiction, deadlines, 
election requirements, or remedies.
    Accordingly, OPM declines to revise the rule to preserve an MSPB 
mixed-case election for part 731 suitability appeals. The final rule 
clarifies claim routing, preserves independent statutory remedies, and 
ensures that OPM's review remains focused on the suitability 
determination and action committed to OPM under part 731.

F. Limitation on Judicial Review

    In the final rule, OPM provides that a party may not obtain 
judicial review of an OPM decision issued under this subpart and that 
there is no further right of appeal from a final OPM decision. 
Commenters 0207, 0329, and 0332 objected that the rule does not 
preserve review comparable to Federal Circuit review of MSPB decisions, 
and commenter 0207 objected generally to eliminating judicial review.
    OPM declines to revise the rule in response to these comments. The 
final rule does not withdraw a statutory right to judicial review. 
Rather, it reflects that Congress has not provided a statutory right to 
judicial review of an OPM decision adjudicating a regulatory 
suitability appeal under part 731. Congress has provided judicial 
review in the CSRA where it chose to do so. For example, 5 U.S.C. 7703 
authorizes judicial review of final orders or decisions of the MSPB. 
But a final decision issued under this subpart is an OPM decision, not 
an MSPB order or decision. Nothing in 5 U.S.C. 7703, chapter 75, or 
chapter 77 grants a party a right to judicial review of an OPM decision 
issued under this regulatory suitability-appeal process.
    Nor did the prior availability of judicial review create an 
independent statutory entitlement to court review of all suitability 
appeals. Any Federal Circuit review previously available flowed from 
OPM's former regulatory decision to route suitability appeals to MSPB, 
whose final decisions are governed by 5 U.S.C. 7703. The Federal 
Circuit has recognized that MSPB jurisdiction is not plenary and that, 
for suitability appeals, former Sec.  731.501 was the regulation that 
placed those matters within MSPB's jurisdiction. Folio, 402 F.3d at 
1353, 1356 (Fed. Cir. 2005). OPM has now revised that regulatory forum. 
Because no statute independently requires MSPB review of part 731 
suitability actions, the

[[Page 49044]]

elimination of the prior regulatory MSPB route does not eliminate a 
statutory judicial-review right.
    This conclusion follows from the structure of the CSRA. MSPB hears 
matters placed within its jurisdiction by law, rule, or regulation. See 
5 U.S.C. 1204(a)(1), 7701(a) (2024). Section 7701(a) supplies 
procedures for actions otherwise appealable to MSPB; it does not itself 
make every personnel matter appealable to MSPB. Section 7512(F) further 
confirms that a suitability action taken by OPM under OPM regulations 
is not a chapter 75 adverse action. Thus, where OPM or an agency 
proceeds under part 731, chapter 75 does not supply an independent MSPB 
or Federal Circuit review path.
    The CSRA is a comprehensive and carefully calibrated remedial 
scheme. The D.C. Circuit has explained that Congress ``intentionally 
provid[ed]--and intentionally [did] not provid[e]--particular forums 
and procedures for particular kinds of claims.'' Am. Fed'n of Gov't 
Emps. v. Secretary of the Air Force, 716 F.3d 633, 636 (D.C. Cir. 
2013); see also Am. Fed'n of Gov't Emps. v. Trump, 929 F.3d 748, 757 
(D.C. Cir. 2019). The scheme is ``comprehensive and exclusive.'' 
Grosdidier v. Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 
2009). It regulates Federal employment and prescribes in detail the 
remedies, forums, and review available for different categories of 
personnel disputes. Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 448 
(D.C. Cir. 2009). That exclusivity applies even where the CSRA provides 
no relief in a particular circumstance. Graham v. Ashcroft, 358 F.3d 
931, 935 (D.C. Cir. 2004); Filebark v. Dep't of Transportation, 555 
F.3d 1009, 1010 (D.C. Cir. 2009); Fornaro v. James, 416 F.3d 63, 67 
(D.C. Cir. 2005).
    The Supreme Court has applied the same principle. In United States 
v. Fausto, the Court held that the absence of CSRA review rights for a 
covered category of excepted-service employees was not a gap to be 
filled by another remedial statute, but a manifestation of Congress's 
considered judgment about the scope of review. 484 U.S. 439, 448-49 
(1988). In Elgin v. Dep't of the Treasury, the Court held that the CSRA 
supplied the exclusive review scheme for covered employees challenging 
covered adverse actions, even where constitutional claims were raised. 
567 U.S. 1, 11-15 (2012). These decisions confirm that the relevant 
question is not whether judicial review would be desirable as a policy 
matter, but whether Congress provided it for the action, forum, claim, 
and party at issue.
    Further, having decided to channel suitability appeals to OPM 
instead of the MSPB, OPM cannot itself confer, by regulation, a right 
to judicial review of its decisions in suitability actions. It is 
black-letter constitutional law that the ``United States, as sovereign, 
is immune from suit save as it consents to be sued,'' and ``the terms 
of its consent to be sued in any court define that court's jurisdiction 
to entertain the suit.'' United States v. Sherwood, 312 U.S. 584, 586 
(1941). It is equally well established that such consent must come from 
Congress: waivers of sovereign immunity must be ``unequivocally 
expressed in statutory text''. Lane v. Pe[ntilde]a, 518 U.S. 187, 192 
(1996). The Supreme Court has held that without specific statutory 
authorization, no suit may be brought against the United States, and 
``no officer by his action can confer jurisdiction.'' United States v. 
Shaw, 309 U.S. 495, 501 (1940). The CSRA waives the Federal 
Government's sovereign immunity and authorizes judicial review of MSPB 
decisions. That waiver, however, extends to petitions for review of 
final MSPB orders and decisions under 5 U.S.C. 7703; it does not extend 
to an OPM decision issued under this subpart. The provisions of the 
final rule stating that a party cannot obtain judicial review of a 
decision under this subpart accordingly do not withdraw any consent to 
suit that Congress has given. They reflect OPM's considered view, 
explained below, that Congress has neither provided a specific avenue 
of judicial review for these decisions nor left them subject to review 
under the general provisions of the Administrative Procedure Act (APA), 
because the CSRA's comprehensive and exclusive remedial scheme 
precludes such review.
    OPM acknowledges that sovereign immunity, standing alone, would not 
bar every suit challenging a final OPM decision under this subpart. In 
1976, Congress amended 5 U.S.C. 702 to waive the Federal Government's 
sovereign immunity in actions ``seeking relief other than money 
damages'' against an agency or its officers or employees. Public Law 
94-574, 90 Stat. 2721 (1976). A suit challenging a final OPM decision 
under this subpart that seeks only nonmonetary relief--for example, an 
order setting aside the suitability action--accordingly would not 
confront a sovereign-immunity bar as such. The dispositive question for 
such a suit is not immunity but reviewability. Section 702 waives 
immunity subject to existing limits: it expressly preserves ``other 
limitations on judicial review'' and confers no authority to grant 
relief that any other statute granting consent to suit expressly or 
impliedly forbids. 5 U.S.C. 702. And the APA's judicial-review 
provisions do not apply to the extent that ``statutes preclude judicial 
review.'' 5 U.S.C. 701(a)(1). Congressional intent to preclude review 
need not be express; it may be ``fairly discernible'' from the 
structure of a statutory scheme that channels claims through a 
particular administrative path. Block v. Community Nutrition Institute, 
467 U.S. 340, 345, 349, 351 (1984); Thunder Basin Coal Co. v. Reich, 
510 U.S. 200, 207 (1994); Elgin, 567 U.S. at 10. As explained below, 
the CSRA is such a scheme with respect to challenges to Federal 
personnel actions.
    OPM also disagrees that the APA independently requires judicial 
review of OPM's final decision under this subpart. OPM recognizes that 
5 U.S.C. 704 makes reviewable ``final agency action for which there is 
no other adequate remedy in a court,'' and that a final OPM decision 
under this subpart is final agency action. OPM further recognizes that, 
because this rule replaces the former avenue of MSPB adjudication 
followed by judicial review under 5 U.S.C. 7703, an appellant will have 
no alternative judicial remedy for a suitability action, so section 
704's adequate-alternative-remedy limitation would not itself bar an 
APA claim. But section 704 identifies which agency actions are 
reviewable when judicial review is otherwise available; it does not 
supply review that the governing statutory scheme withholds. The APA 
does not create review where statutes preclude review, and it does not 
allow parties to bypass the exclusive remedial structure Congress 
established for Federal personnel disputes. See 5 U.S.C. 701(a)(1), 
704; Fausto, 484 U.S. at 448-49; Elgin, 567 U.S. at 11-15. In Fausto, 
the Supreme Court held that the CSRA's ``integrated scheme of 
administrative and judicial review'' forecloses review outside its 
terms even for employees to whom the statute gives no right of review 
at all. 484 U.S. at 443-49. The courts of appeals have repeatedly 
applied that holding to bar APA suits over Federal employment actions. 
Fornaro v. James, 416 F.3d 63, 66-67 (D.C. Cir. 2005) (``what you get 
under the CSRA is what you get''); Grosdidier v. Chairman, Broadcasting 
Board of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009); Filebark v. 
United States Department of Transportation, 555 F.3d 1009, 1010-14 
(D.C. Cir. 2009); Graham v. Ashcroft, 358 F.3d 931, 933-35 (D.C. Cir. 
2004); Nyunt v. Chairman,

[[Page 49045]]

Broadcasting Board of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009). 
Those decisions confirm that CSRA preclusion applies even where the 
statute affords the claimant no avenue of relief. The final rule 
therefore does not use regulation to extinguish a statutory judicial-
review right; it clarifies that the part 731 regulatory appeal process 
itself does not create one.
    OPM acknowledges one respect in which this rulemaking differs from 
Fausto and Elgin: here, the unavailability of further review results in 
part from OPM's revision of its own regulations rather than solely from 
the CSRA's text. But the premise of that revision is statutory. 
Congress provided in 5 U.S.C. 7512(F) that chapter 75's adverse-action 
provisions do not apply to a suitability action taken under OPM's 
regulations, and the MSPB appeal path that this rule replaces existed 
only as a matter of OPM regulation. The architecture of review for 
suitability actions thus rests, within the CSRA's comprehensive 
framework, on OPM's regulations, and the Fausto-Elgin structural 
analysis governs the resulting scheme. In any event, this rule neither 
enlarges nor contracts the jurisdiction of the Federal courts, which is 
fixed by statute; whether a particular suit may proceed under 5 U.S.C. 
702 and 704 is ultimately a question for the courts to decide. Nor does 
anything in this subpart purport to preclude judicial review of 
colorable constitutional claims, which courts require a heightened 
showing of congressional intent to foreclose. Webster v. Doe, 486 U.S. 
592, 603 (1988).
    Finally, the limitation on judicial review applies to OPM's 
decision under this subpart. Revised Sec.  731.501(e) preserves an 
applicant's, appointee's, or employee's ability to file a complaint, 
appeal, or other matter within the independent jurisdiction of the 
EEOC, FLRA, an Inspector General, MSPB, the Department of Labor's 
Veterans' Employment and Training Service, or OSC. Accordingly, the 
final rule does not foreclose independent statutory remedies; it 
provides that the final OPM decision resolving a part 731 suitability 
appeal is not subject to further administrative appeal or judicial 
review under part 731.

G. Recruitment, Retention, and Workforce Concerns

    Several commenters, including commenter 0097, expressed concern 
that the proposed rule would negatively affect hiring, retention, 
morale, and trust in Federal personnel systems because employees and 
potential applicants rely on predictable, transparent, and fair 
suitability procedures. Other commenters, including commenter 0166, 
supported the rule, stating that existing processes can be burdensome 
and may discourage agencies from acting when serious conduct raises 
suitability concerns, thereby allowing conduct that harms workplace 
culture, mission performance, and accountability to persist. Similar 
comments in the record reflected both sets of concerns: some commenters 
warned that reduced protections could deter Federal service, while 
others acknowledged that existing processes may be slow or may 
discourage warranted action.
    OPM agrees that public confidence in the Federal personnel system 
is essential to recruitment and retention. But confidence is not served 
only by preserving existing procedures. It is also served by ensuring 
that suitability concerns are resolved promptly, consistently, and 
under procedures that are clear to applicants, appointees, employees, 
agencies, and the public. A system that leaves serious suitability 
concerns unresolved for extended periods can itself harm morale, 
workplace trust, mission effectiveness, and the willingness of high-
performing employees to remain in Federal service.
    OPM disagrees that MSPB review is necessary to maintain a stable 
and attractive Federal workforce. This rule does not make suitability 
actions at-will dismissals, does not add political or viewpoint-based 
suitability criteria, and does not eliminate procedural protections. 
Suitability actions remain limited to actions taken under part 731 
because of an unfavorable suitability determination, and appellants may 
contest both the unfavorable suitability determination and specified 
procedural failures. The final rule also adds safeguards beyond the 
proposal, including express burdens of proof, a complete certified 
agency record, disclosure protections, separation-of-functions 
requirements, adjudicator conflict rules, ex parte protections, 
training requirements, ALJ adjudication or administrative judge-
presided hearings where required by the rule, objective criteria for 
additional fact development and hearings, written findings on material 
charges and suitability factors, remedies for prevailing appellants, 
reconsideration standards, and public availability of final merits 
decisions or de-identified summaries.
    These protections respond directly to commenters' concerns that a 
streamlined process could reduce fairness or transparency. At the same 
time, the final rule responds to commenters who emphasized the costs of 
delay and under-enforcement. A suitability system that is too 
cumbersome to use effectively can undermine accountability and public 
trust by deterring agencies from addressing conduct that bears on the 
integrity or efficiency of the service. The final rule seeks to avoid 
both errors: unsupported or procedurally defective suitability actions 
should not be sustained, but supported suitability actions should be 
resolved without unnecessary duplication or delay.
    Accordingly, OPM does not expect this final rule to deter qualified 
applicants from seeking Federal employment or discourage employees from 
continuing their service. OPM expects the rule to promote a more 
predictable, timely, and accountable suitability appeals process while 
preserving meaningful procedural protections and reinforcing the 
integrity and efficiency of the Federal service.

H. Sanctions and Protective Orders

    Several commenters, such as 0296, 0299, 0303, 0329, and others, 
expressed concern that the proposed sanctions for noncompliance are 
excessively severe, and that the sanctions and protective-order 
provisions in the proposed rule were overly broad and insufficiently 
justified. Commenters argued the language improperly expanded OPM's 
authority by allowing OPM to issue protective or ``cease-and-desist'' 
orders sua sponte, preemptively, and outside the context of actual 
harassment. Commenters further asserted that the proposal could 
restrict First Amendment-protected speech, employee advocacy, union 
communications, whistleblowing, and other protected disclosures by 
limiting the use or communication of appeal-related information.
    OPM has considered these comments and is narrowing Sec.  731.506 in 
the final rule. The final rule does not adopt the broad ``reasonably be 
foreseen to lead to harassment'' formulation and does not authorize OPM 
to bar use of any information related to an appeal for any purpose 
whatsoever. Instead, OPM may issue a protective order or cease-and-
desist directive only to protect the integrity of the adjudicatory 
process; prevent threats, intimidation, targeted harassment, improper 
witness contact, disclosure of protected personal information; or 
prevent misuse of nonpublic information obtained through the appeal. 
The final rule also adds two limiting principles. Any protective order 
must be no broader than reasonably necessary, and any such

[[Page 49046]]

order must not restrict lawful communications protected by law.
    OPM declines to remove protective-order authority entirely. Because 
OPM will adjudicate appeals under part 731, it must have reasonable 
procedural tools to protect witnesses, parties, protected personal 
information, nonpublic appeal materials, and the integrity of the 
adjudicatory record. OPM also retains authority to act sua sponte or 
preemptively where necessary, because threats to the process, improper 
witness contact, or disclosure of protected information may arise 
before a party files a motion or before harm has fully occurred. That 
authority is limited to matters connected to an appeal under part 731 
and to the specific purposes identified in Sec.  731.506(a).
    The final rule does not prohibit an appellant from discussing the 
appellant's own experience, seeking advice or representation, 
communicating with a union representative or attorney, filing or 
pursuing a matter before another authorized forum, making protected 
whistleblower disclosures, communicating with Congress, or engaging in 
any other communication protected by law. As revised, Sec.  731.506 is 
a tailored case-management provision designed to protect the fairness 
and integrity of the adjudicatory process.
    As finalized, Sec.  731.506 is not a general authority for OPM to 
restrict speech, control communications unrelated to an appeal, or 
create a procedural trap for appellants. OPM may issue a protective 
order or cease-and-desist directive only for specified process-
integrity purposes: to protect the integrity of the adjudicatory 
process; prevent threats, intimidation, targeted harassment, improper 
witness contact, or disclosure of protected personal information; or 
prevent misuse of nonpublic information obtained through the appeal. 
The final rule further provides that any protective order must be no 
broader than reasonably necessary and must not restrict lawful 
communications protected by law. These limitations directly address 
commenter concerns that the proposed language could be read too 
broadly.
    OPM also clarifies that a violation of a protective order will not 
automatically result in denial or dismissal of an appeal. Section 
731.506 is a case-management provision, not a dispositive merits rule. 
If a party violates a lawful protective order, OPM may impose only 
case-related sanctions appropriate to the violation, such as drawing an 
adverse inference, limiting a party's reliance on improperly used 
evidence, or excluding appropriate portions of a filing or submission. 
Any such consequence must be tied to the violation and to the integrity 
of the adjudicatory process; it may not be used to avoid deciding the 
appealable issues under Sec.  731.501(c).
    In sum, OPM appreciates and has revised this section to reflect 
valid concerns raised by the commenters, and is finalizing language 
that is narrower and clearer, to ensure that the authority--both the 
protective order and sanctions for violation thereof--are used only to 
protect the fairness and integrity of the part 731 adjudication 
process.

I. Remedies

    Commenter 0296 objected that proposed Sec.  731.505(h) appeared to 
limit prevailing appellants principally to Back Pay Act relief and 
would delay payment of back pay, interest, and attorney fees until 
OPM's decision became final. The commenter also argued that excluding 
discrimination claims from the suitability appeal process would deny 
compensatory damages in that forum.
    OPM agrees in part and has revised the remedies provision to better 
reflect the range of relief that may be appropriate in a suitability 
appeal. The final rule no longer frames relief solely in Back Pay Act 
terms. Instead, final Sec.  731.505(g) provides that, if the appellant 
is the prevailing party, OPM will order appropriate relief authorized 
by law, which may include correction, cancellation, or modification of 
the suitability action; correction of relevant records; prospective 
eligibility or appointment-related relief; and, where applicable and 
legally authorized, back pay, interest, and reasonable attorney fees 
consistent with 5 CFR part 550, subpart H.
    This revision is important because part 731 appeals may involve 
applicants, appointees, or employees and may concern cancellation of 
eligibility, removal, cancellation of reinstatement eligibility, or 
debarment. A remedy limited to back pay would not adequately account 
for cases involving applicants or eligibility-based actions. The final 
rule therefore expressly authorizes relief tailored to the suitability 
action at issue, including correction of records and prospective 
eligibility or appointment-related relief where authorized.
    OPM also revised the proposed rule's treatment of interim relief. 
The final rule removes the proposed language stating that back pay, 
interest, or attorney fees are not payable before the decision becomes 
final. Instead, if a party timely seeks reopening and reconsideration, 
or if the OPM Director reopens and reconsiders an initial decision, the 
responsible agency must continue to provide ordered relief unless OPM 
issues a stay. The final rule further provides that no stay may deprive 
the individual of pay and benefits while the initial decision is 
pending reconsideration. This change addresses the commenter's concern 
that relief could be unduly delayed after an appellant prevails.
    OPM declines, however, to authorize compensatory damages or other 
relief not available under applicable law in a part 731 suitability 
appeal. The purpose of subpart E is to determine whether the 
unfavorable suitability determination and resulting suitability action 
are supported and whether the required suitability-action procedures 
were followed. It is not an EEO adjudication, a prohibited-personnel-
practice proceeding, or a general damages forum. Accordingly, the final 
rule provides that the appellant is not entitled to compensatory 
damages or other relief not authorized by law.
    This limitation does not preclude remedies available in another 
forum. Section 731.501(e) makes clear that the part 731 appeal process 
does not prevent an applicant, appointee, or employee from filing a 
complaint, appeal, or other matter within the independent jurisdiction 
of the EEOC, FLRA, an Inspector General, MSPB, DOL VETS, or OSC. Thus, 
if compensatory damages or other relief are authorized in an EEO or 
other statutory process, this rule does not limit those remedies. The 
final rule simply confines remedies in the part 731 appeal to relief 
legally available for correcting an improper suitability determination 
or suitability action.

J. Appellant Representatives, Union Involvement, and Official Time

    Commenters 0303, 0332, 0333, and 0329 objected to the proposed 
representative provisions, arguing that the restriction on Federal-
employee representatives serving while on duty status or official time 
conflicts with 5 U.S.C. 7131, collective-bargaining agreements, and 
established representational rights. Commenter 0333 also argued that 
the rule would eliminate negotiated grievance and arbitration rights 
for bargaining-unit employees. Commenters 0043, 0249, 0250, 0252, and 
others raised similar concerns about OPM's authority to disallow a 
chosen representative.
    OPM recognizes the importance of representation in suitability-
action appeals. For that reason, the final rule preserves an 
appellant's right to select a representative of the appellant's choice 
to assist in preparing and presenting an

[[Page 49047]]

appeal. It also makes notice of the right to representation one of the 
procedural protections that an appellant may challenge as an improper 
procedure if the responsible agency failed to provide it.
    OPM does not agree, however, that a Federal employee selected as a 
representative must be permitted to perform representational functions 
in duty status or on official time in this OPM regulatory appeal 
process. A part 731 appeal is not a negotiated grievance proceeding 
under chapter 71. It is a governmentwide suitability-appeal procedure 
established by OPM for review of suitability actions under part 731. 
Section 7131(d) does not create an unconditional entitlement to 
official time for every representational activity in every forum; it 
provides for official time in amounts the agency and exclusive 
representative agree are reasonable, necessary, and in the public 
interest. Section 7117(a)(1), in turn, provides that the duty to 
bargain extends only to the extent not inconsistent with Federal law or 
any governmentwide rule or regulation.
    Accordingly, OPM is adopting Sec.  731.504(b) as a governmentwide 
procedural limitation for this appeal process. The provision does not 
``delete'' statutory text or eliminate the right to representation. It 
specifies that, when the chosen representative is a Federal employee, 
that representative may not perform the representational function in 
duty status, including official time under 5 U.S.C. 7131, and may not 
claim agency reimbursement for expenses incurred while performing that 
representational function. OPM concludes that agencies should not be 
required, through this OPM appeal process, to subsidize the prosecution 
or defense of individual suitability appeals through duty time, 
official time, or reimbursement of representative expenses, except 
where otherwise required by law.
    Commenters' reliance on prior official-time precedent does not 
require a different result. In AFGE, National INS Council, 45 FLRA 391 
(1992), and INS v. FLRA, 4 F.3d 268 (4th Cir. 1993), the FLRA and court 
addressed negotiability of official time for statutory appeals in the 
absence of a controlling prohibition. The Fourth Circuit specifically 
noted that it found no statute or regulation precluding the negotiated 
official-time provision at issue. This final rule supplies a 
governmentwide regulatory limitation for part 731 appeals; those 
decisions do not hold that OPM is barred from adopting such a rule for 
a regulatory appeal process that OPM itself establishes.
    OPM also disagrees that the official-time limitation makes the 
appeal right illusory or denies meaningful representation. An appellant 
may represent himself or herself; retain an attorney; select a non-
Federal representative; select a union representative; or select a 
Federal employee representative who serves outside duty status. The 
rule does not prohibit a union from advising an appellant, does not 
prohibit a union official from serving as representative outside duty 
status, and does not limit representation in proceedings where official 
time is independently authorized by law. It only prevents a Federal 
employee representative from performing the part 731 appeal function 
while in duty status or from claiming agency reimbursement for that 
function.
    OPM also declines to remove the representative-disallowance 
provision. Section 731.504(c) does not authorize arbitrary disallowance 
of representatives. It applies only when the selected representative is 
an employee of the responsible agency or OPM, and only when the 
representative's activities would cause a conflict of interest or 
position. In response to comments, the final rule narrows this 
provision from the proposal by removing the additional grounds that 
would have permitted disallowance based on the priority needs of the 
Government or unreasonable costs to the Government. The remaining, 
narrowed provision is tailored to genuine conflicts of interest or 
position; it does not authorize OPM or an agency to disallow a 
representative merely because the representative is affiliated with a 
union or because the agency disagrees with the appellant's position.
    Nor does the final rule eliminate matters that are independently 
within FLRA jurisdiction or other collateral statutory forums. Section 
731.501(e) provides that subpart E is the sole means of appealing a 
suitability action under part 731, but does not otherwise preclude an 
applicant, appointee, or employee from filing a complaint, appeal, or 
other matter within the independent jurisdiction of the FLRA or other 
listed entities. Thus, disputes over collective-bargaining obligations, 
unfair labor practices, or contract interpretation remain subject to 
the statutory framework governing those matters. To the extent a 
negotiated grievance procedure purports to provide an alternative forum 
for deciding the merits of a part 731 suitability action, however, this 
governmentwide regulation governs the appeal procedure for that 
suitability action. See U.S. Dep't of the Treasury, IRS v. FLRA, 996 
F.2d 1246, 1250 (D.C. Cir. 1993) (5 U.S.C. 7117(a)(1) ``permits the 
government to pull a subject out of the bargaining process by issuing a 
governmentwide rule that creates a regime inconsistent with 
bargaining,'' including where a regulation ``sets out an exclusive 
method of resolving any claims'').
    For these reasons, OPM declines to remove Sec.  731.504(b) or Sec.  
731.504(c). The final rule preserves the appellant's right to 
representation while reasonably limiting agency-funded representational 
activity and preserving OPM's ability to prevent conflicts of interest, 
mission disruption, and unreasonable costs in the administration of 
this governmentwide suitability-appeal process.

K. Training/Qualifications

    Commenters such as 0194, 0195, and 0332 questioned whether OPM 
personnel assigned to adjudicate suitability action appeals would have 
sufficient training, qualifications, and expertise to perform that 
function and asserted that the quality and rigor of the adjudicator 
process would diminish when compared to MSPB administrative judges and 
other legally trained adjudicators.
    OPM appreciates the comments concerning the training and 
qualifications of personnel who will adjudicate suitability action 
appeals. OPM agrees that individuals assigned to review suitability 
action appeals must be qualified to evaluate the record, apply the 
suitability factors in Sec.  731.202(b), and determine whether the 
suitability determination is supported by a preponderance of the 
evidence. OPM does not agree, however, that meaningful review of 
suitability-action appeals requires adjudication by MSPB administrative 
judges. Suitability appeals require specialized knowledge of part 731, 
suitability factors, suitability-action procedures, mitigating and 
exculpatory evidence, action-selection principles, and the evidentiary 
standards applicable to suitability determinations. OPM is the agency 
responsible for prescribing, interpreting, and administering the 
governmentwide suitability framework, and it is well positioned to 
ensure that adjudicators assigned to these appeals are trained in the 
standards they must apply.
    Section 731.505(c) of the final rule requires that all OPM 
employees and administrative law judges assigned by OPM to adjudicate 
appeals complete training that complies with national training 
standards for suitability adjudicators. These standards are not new. 
OPM has required training in accordance with national suitability

[[Page 49048]]

adjudicator standards since 2012, and OPM provides governmentwide 
training that complies with those standards. The final rule formalizes 
that qualification requirement for personnel assigned to adjudicate 
suitability action appeals.
    OPM also disagrees with comments suggesting that the use of trained 
OPM personnel will result in less rigorous review. The final rule also 
adds several safeguards that reinforce adjudicatory rigor beyond 
training alone. The responsible agency bears the burden to establish, 
by a preponderance of the evidence, the charge or charges supporting 
the unfavorable suitability determination and the substantive propriety 
of the suitability action. The responsible agency must submit a 
complete, indexed, paginated, and certified record, including the 
charge-by-charge analysis, suitability-factor analysis, consideration 
of mitigating, rehabilitative, contradictory, or exculpatory evidence, 
and the rationale for the action selected.
    Under the final rule, appeal adjudicators must review the record 
under the preponderance of the evidence standard and determine whether 
the unfavorable suitability determination and resulting suitability 
action are supported under that standard. The initial decision must 
make findings on each material charge, specification, and suitability 
factor relied upon to support the action, and if fewer than all charges 
or specifications are sustained, OPM must determine whether the 
sustained grounds support the suitability action imposed.
    The final rule's fact-development provisions will ensure that 
adjudicators have tools to address incomplete records or disputed 
material facts. OPM may require either party to provide additional 
information and may investigate where the existing record is 
insufficient to resolve a material issue and further development is 
reasonably likely to produce material information. If the written 
record is insufficiently developed to decide the appeal because of 
disputes involving one or more material facts, the final rule permits 
OPM to conduct further investigation or hold a hearing to evaluate 
witness credibility. These procedures require adjudicators to apply the 
governing suitability standards to the record and provide a mechanism 
to address material evidentiary gaps when they arise.
    Accordingly, OPM declines to require MSPB adjudication as a 
prerequisite for qualified and rigorous review. The final rule instead 
establishes a specialized suitability-appeal process in which 
adjudicators must be trained in national suitability-adjudicator 
standards and must operate within a framework that includes burden-of-
proof rules, complete-record requirements, disclosure protections, 
separation-of-functions safeguards, ex parte restrictions, conflict-of-
interest disqualification, objective criteria for additional fact 
development and hearings, and written findings on the material issues. 
OPM concludes that these requirements provide sufficient expertise, 
rigor, and procedural integrity for adjudicating part 731 suitability-
action appeals.

L. Transparency and Publication of Decisions

    OPM received comments expressing concern that the proposed 
suitability-appeals process would reduce transparency because filings 
would be accessible only to the parties and the proposed rule did not 
specify how OPM would make appeal decisions available to the public. 
Commenters 0296 and 0005, for example, asserted that without public, 
searchable, reasoned decisions, the new process could impair public 
oversight, reduce consistency, and increase the risk or perception of 
favoritism. Commenters recommended that OPM publish redacted or 
precedential decisions to promote transparency and consistent 
application of part 731.
    OPM agrees in part. Transparency in suitability-action adjudication 
promotes public confidence, assists agencies and appellants in 
understanding how OPM applies part 731, and supports consistency across 
cases. At the same time, suitability appeals often involve sensitive 
personal, investigative, medical, financial, employment, law-
enforcement, classified, national-security, or otherwise protected 
information. Public disclosure of full appeal records could 
unnecessarily expose private information about appellants, witnesses, 
agencies, and third parties, and could undermine legal privileges or 
other disclosure restrictions.
    The final rule therefore adopts a balanced approach. OPM will make 
publicly available final merits decisions or de-identified summaries of 
final merits decisions, consistent with 5 U.S.C. 552, the Privacy Act, 
and other applicable law. Public summaries will identify the procedural 
posture, sustained and unsustained suitability factors, disposition, 
and remedy, without disclosing protected information. In addition, 
final merits decisions will be made available upon request to the 
applicant, appointee, or employee involved in the proceeding, the 
appellant's representative under Sec.  731.504, or the representative 
of the Federal agency or office involved in the proceeding with a need 
to know.
    OPM is not adopting a requirement that all filings or complete case 
records be made publicly available. The final rule limits access to 
documents in OPM's electronic filing system to the parties and their 
representatives in the case, and separately permits inspection of OPM's 
appellate record subject to the Privacy Act, applicable privileges, 
classified-information or national-security requirements, protective 
orders, and other legal limits. This protects privacy and legally 
protected information while ensuring that the parties have access to 
the record needed to litigate the appeal.
    OPM also is not adopting a separate precedential-decision regime in 
this rule. The final rule instead promotes consistency through reasoned 
initial decisions that must make findings on each material charge, 
specification, and suitability factor, and through public availability 
of final merits decisions or de-identified summaries. This approach 
provides public insight into OPM's application of the suitability 
standards while preserving flexibility to protect sensitive information 
and to determine, consistent with law, whether a full final merits 
decision or a de-identified summary is the appropriate public vehicle 
in a particular case.
    Accordingly, OPM has revised the final rule to provide greater 
transparency than the proposal while protecting privacy, national-
security, privileged, and other legally protected information. OPM 
concludes that the publication framework in Sec.  731.509(e), together 
with the final rule's requirements for reasoned decisions, record 
access by the parties, and public summaries or decisions, appropriately 
addresses commenters' transparency concerns without making sensitive 
appeal filings publicly available.

M. Types of Positions Covered

    Commenter 0336 objected to the rule's application to competitive-
service employees, including tenured employees, and career SES members. 
The commenter asserted that applying suitability actions to post-
appointment conduct is a novel expansion that circumvents chapter 75 
protections, treats competitive-service employees less favorably than 
some excepted-service employees, lacks statutory support for career SES 
members, and improperly changes the mechanisms available for removing 
tenured Federal employees.

[[Page 49049]]

    OPM disagrees with the commenter's characterization of this rule 
and declines to revise the rule on that basis. This final rule does not 
expand the categories of positions or individuals subject to part 731, 
create new substantive suitability factors, authorize new suitability 
actions, or alter the circumstances under which OPM or an agency may 
take a suitability action. It revises only subpart E--the forum and 
procedures for appealing a suitability action taken under part 731. 
Revised Sec.  731.501(a) limits the appeal right to an applicant, 
appointee, or employee in the competitive service or career Senior 
Executive Service, as those terms are used in part 731, who is subject 
to a suitability action because of an unfavorable suitability 
determination. Revised Sec.  731.501(c) further limits appealable 
merits issues to determinations based on the specific suitability 
factors in Sec.  731.202(b) that resulted in a suitability action as 
defined in Sec.  731.101(a), and Sec.  731.501(d) confirms that an 
unfavorable suitability determination that does not result in a 
suitability action is not appealable under this subpart.
    The commenter's objections to the use of suitability authority for 
post-appointment conduct are addressed in the separate Suitability and 
Fitness final rule. See 91 FR 39361. That rule addresses the 
substantive scope of part 731 and explains OPM's authority to make 
suitability determinations and take suitability actions under the 
President's and OPM's civil service authorities. This appeals rule 
assumes only that a suitability action has been taken under part 731 
and prescribes the procedure for administrative review of that action. 
It therefore does not itself convert ordinary misconduct, performance 
deficiencies, or chapter 75 matters into suitability matters.
    OPM also disagrees that this rule circumvents chapter 75. Chapter 
75 remains available when an agency proceeds under chapter 75. When OPM 
or an agency proceeds under part 731, however, Congress has provided 
that chapter 75 does not apply to ``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.'' 5 U.S.C. 7512(F). OPM does not rely on 
section 7512(F) as an independent expansion of substantive suitability 
authority; rather, the provision confirms that, where a suitability 
action is lawfully taken under part 731, chapter 75 does not supply the 
governing appeal route.
    Nor is the inclusion of career SES members improper. Part 731 has 
long applied to career SES appointments, and OPM does not read chapter 
75's SES provisions to displace the President's and OPM's separate 
suitability authority when OPM acts under the civil-service rules and 
part 731. Section 7543 governs actions covered by subchapter V of 
chapter 75. A suitability action under part 731 is taken under separate 
suitability authority and remains subject to part 731's substantive 
limits and procedural requirements.

N. Timely Filing

    OPM received a comment objecting to the proposed requirement that 
an appellant bear the burden to demonstrate, by a preponderance of the 
evidence, that the appeal was timely. Commenter 0301 stated that this 
requirement is unfair to appellants.
    OPM disagrees. Timely filing is a threshold requirement for 
invoking OPM's appeal process, and it is reasonable to place the burden 
on the party seeking review to show that the appeal was filed within 
the applicable deadline or that good cause exists for an untimely 
filing. In the final rule, OPM has consolidated this requirement in 
Sec.  731.501(b)(1), which provides that the appellant bears the burden 
to demonstrate the timeliness of the written appeal and OPM's 
jurisdiction by a preponderance of the evidence. This threshold burden 
is separate from the merits burden. If the appellant contests the 
unfavorable suitability determination and establishes timeliness and 
jurisdiction, the responsible agency bears the burden to prove, by a 
preponderance of the evidence, the charge or charges supporting the 
unfavorable suitability determination and the substantive propriety of 
the suitability action.
    The final rule also provides clear filing rules. An appellant may 
file an appeal within 30 calendar days from the effective date of the 
suitability action. An appeal is timely if electronically filed by 
11:59 p.m. Eastern Time on the 30th calendar day after the effective 
date of the action. The rule explains how to calculate the filing 
period, including that the first day counted is the day after the 
effective date; that, for an appointee or employee, the effective date 
is the date the employing agency effectuates the action; and that, for 
an applicant, the effective date 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 purposes 
of the filing deadline. If the last day falls on a Saturday, Sunday, or 
Federal holiday, the filing period extends to the first workday after 
that date.
    The final rule also preserves flexibility for appropriate cases. If 
an appeal is not filed within the regulatory deadline, it will be 
dismissed as untimely unless the appellant demonstrates good cause for 
the untimely filing. Section 731.503(g) separately provides that 
untimely filings may be accepted upon a party's showing of good cause, 
in OPM's sole and exclusive discretion. OPM declines to codify a fixed 
list of good-cause factors, but may consider the relevant facts and 
circumstances presented, including whether the appellant acted 
diligently, whether the delay resulted from circumstances outside the 
appellant's control, and whether the appellant timely sought any needed 
e-filing exemption.
    Accordingly, OPM concludes that the timeliness burden is a 
reasonable threshold requirement. It provides certainty, promotes 
orderly adjudication, and does not alter the responsible agency's 
burden to prove the merits of the suitability determination and action 
once the appeal is properly before OPM.

O. Electronic Filing System

    OPM received comments raising concerns about the proposed 
electronic filing requirement. Commenter 0183 questioned the readiness, 
administration, funding, and cost assumptions associated with the e-
filing system. Commenter 0296 expressed concern that mandatory e-filing 
could reduce access for individuals with disabilities if the system is 
not accessible and compliant with applicable accessibility 
requirements. Commenter 0197 raised concerns that individuals without 
reliable email or internet access could be disadvantaged in pursuing an 
appeal.
    OPM appreciates these comments but will retain electronic filing as 
the default method for suitability-action appeals. Electronic filing 
supports a more efficient, reliable, and orderly appeal process by 
allowing parties to submit filings, receive service, view case 
documents, and monitor case activity through a centralized system. It 
also provides a clear filing timestamp, reduces delays associated with 
paper mail and manual distribution, and helps OPM maintain a complete 
administrative record.
    The final rule includes safeguards to ensure that the e-filing 
requirement does not prevent meaningful access to the appeal process. 
Section 731.502(a) provides that filings must be made

[[Page 49050]]

through the electronic filing system identified on OPM's website unless 
a party demonstrates good cause and obtains OPM approval to use another 
method. Section 731.502(c)(7) further provides that OPM may exempt a 
party or representative from registering as an e-filer for good cause. 
A party or representative who cannot use the system must promptly 
contact OPM, as instructed on OPM's website, to request an exemption 
before the applicable filing deadline.
    OPM also recognizes the importance of accessibility. OPM will 
administer the electronic filing system consistent with applicable 
Federal accessibility requirements, including Section 508 of the 
Rehabilitation Act, 29 U.S.C. 794d. The good-cause exemption provides 
an additional safeguard for individuals who cannot use the electronic 
filing system because of disability-related, technological, access-
related, or other demonstrated limitations.
    The final rule also narrows and clarifies e-filing compliance 
provisions. Registration as an e-filer constitutes consent to 
electronic service, and registered users are responsible for 
maintaining current contact information and monitoring case activity. 
Documents filed in the system are deemed received on the date of 
electronic submission. Access to case documents in the system is 
limited to the parties and their representatives in the cases in which 
the documents were filed. OPM may strike a document only where an e-
filer repeatedly fails to follow filing instructions after receiving a 
show-cause order. These provisions promote orderly case management 
while avoiding unnecessary sanctions for isolated or good-faith filing 
errors.
    With respect to system readiness and cost, OPM has secured access 
to an existing electronic case-management system to receive, track, and 
manage appeal submissions. OPM has updated the regulatory impact 
analysis to account for the annual recurring cost of licenses for OPM 
staff, estimated at $16,000 annually. OPM does not expect this 
recurring cost to materially alter the overall cost analysis. OPM will 
also address any applicable Paperwork Reduction Act, Privacy Act, 
records-management, and system-of-record requirements associated with 
collecting and maintaining appeal records.
    Accordingly, OPM concludes that electronic filing is appropriate 
for this appeal process. The final rule promotes timely and reliable 
filing and service, protects case records, provides good-cause 
exemptions for individuals who cannot use the system, and will be 
implemented consistent with applicable accessibility, privacy, records, 
and information-management requirements.

P. Length of Comment Period

    OPM received several comments asserting that the comment period for 
the proposed rule was insufficient and violated the Administrative 
Procedure Act (APA). See Comment 0329 for an example. They argued that 
the comment period did not provide adequate time for meaningful public 
participation and cited Executive Order (E.O.) 12866's general 
statement that agencies should provide at least 60 days for public 
comment when practicable. The commenters based this argument on 
multiple sources--first, the APA's mandate that an ``opportunity to 
participate'' on proposed rules be provided following a notice of 
proposed rulemaking; second, as a violation of 5 U.S.C. 553(d); and 
third, E.O. 12866, which specifies that comment periods should 
``generally'' be at least 60 days.
    OPM rejects the argument that the comment period was inadequate as 
a matter of law or policy. The APA requires agencies to provide 
interested persons an opportunity to participate in rulemaking through 
submission of written data, views, or arguments. OPM provided that 
opportunity. As several appellate courts have held, a 30-day comment 
period is generally the minimum needed to comply with the APA.\2\
---------------------------------------------------------------------------

    \2\ See Chamber of Com. of the U.S. v. U.S. Sec. & Exch. Comm'n, 
85 F.4th 760, 779 (5th Cir. 2023) (``the APA generally requires only 
a minimum thirty-day comment period.''); Riverbend Farms, Inc. v. 
Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992) (``Although the APA 
mandates no minimum comment period, some window of time, usually 
thirty days or more, is . . . allowed for interested parties to 
comment.''); Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 
1102, 1117 (D.C. Cir. 2019) (``When substantial rule changes are 
proposed, a 30-day comment period is generally the shortest time 
period sufficient for interested persons to meaningfully review a 
proposed rule and provide informed comment.'').
---------------------------------------------------------------------------

    The commenter's reliance on E.O. 12866 and E.O. 13563 is similarly 
misplaced. These orders only mandate that comment periods should 
``generally'' be at least 60 days. The policy rationale for that 
mandate is that stakeholders should have adequate opportunity to 
meaningfully participate in the notice-and-comment process. Concerning 
the present rulemaking, OPM received 343 comments, offering 
perspectives on many aspects of the proposed rule. OPM received 
hundreds of comments addressing the rule's legal basis, policy 
justification, procedural design, effect on employees and agencies, 
relationship to MSPB, relationship to EEOC and OSC processes, possible 
alternatives, and potential consequences for the civil service. The 
breadth and specificity of the comments confirm that interested parties 
had a meaningful opportunity to comment. Factually, it cannot be said 
that the comment period was insufficient to allow for meaningful 
feedback on the proposed rule given the feedback that OPM did receive. 
The volume of comments received and their wide scope indicate that the 
30-day comment period did not meaningfully impair the public's ability 
to comment on the proposed rule.
    Further, in the years since those executive orders were issued, 
comment periods have not infrequently been shorter, often 30 or 45 
days. This is, in part, because agencies, working with the White House, 
have a great deal of discretion in shortening the comment period based 
on the facts of the situation. As courts have repeatedly held, 
``executive orders are not judicially enforceable.'' \3\ That is, as a 
general matter, executive orders and other White House guidance on the 
regulatory process bind executive agencies only as a matter of the 
internal management of the executive branch. Thus, several Federal 
courts have specifically held that there is no legal requirement that 
agencies comply with the requirements specified in E.O.s 12866 and 
13563.\4\
---------------------------------------------------------------------------

    \3\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573 
(D.C. Cir. 2025) (citing Marin Audubon Soc'y v. Fed. Aviation 
Admin., 121 F.4th 902, 913 (D.C. Cir. 2024)); see also Chen Zhou 
Chai v. Carroll, 48 F.3d 1331, 1338-39 (4th Cir. 1995) (no private 
right of action to enforce executive order unless issued pursuant to 
a statutory mandate or delegation by Congress).
    \4\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309, 
1326-27 (11th Cir. 2021) (holding that E.O. 12866 and E.O. 13563 
specifically are not judicially enforceable); Miller v. Garland, 674 
F.Supp.3d 296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604, 
2024 WL 4973474 (4th Cir. July 30, 2024) (holding that E.O. 12866 is 
not judicially enforceable).
---------------------------------------------------------------------------

    Accordingly, the 30-day comment period provided by OPM was not 
``truncated'' but was instead well within the APA's procedural 
requirements and the period that should be considered reasonable in 
light of the President's executive order compelling agency action.

Q. Interaction With the June 2025 Suitability and Fitness NPRM and 
Other Personnel Rulemakings

    Commenters 0207/0286, 0288, 0303, 0334, 0332, 0314, 0330, and 0329 
argued that this rule should not be evaluated in isolation from other 
recent or pending OPM personnel rulemakings, including the June 2025 
Suitability and Fitness NPRM. Several commenters asserted that the 
rulemakings, viewed

[[Page 49051]]

together, would expand the use of suitability actions while reducing 
independent review, judicial review, discovery, hearings, and other 
procedural protections. Some commenters also argued that OPM's decision 
to proceed through several separate rulemakings addressing related 
personnel subjects deprived the public of a meaningful opportunity to 
comment or violated the APA.
    OPM has considered these comments and disagrees that the APA 
required OPM to combine this rulemaking with the June 2025 Suitability 
and Fitness rulemaking, delay this rulemaking, reopen the comment 
period, or provide a separate comment period devoted solely to the 
interaction among this rulemaking and other personnel rulemakings. The 
APA requires a notice of proposed rulemaking to identify the time, 
place, and nature of the proceeding; the legal authority for the 
proposal; and either the proposed rule's terms or substance or a 
description of the subjects and issues involved. After notice, the 
agency must provide interested persons an opportunity to submit written 
data, views, or arguments and must consider the relevant matter 
presented. 5 U.S.C. 553(b)-(c). The fair-notice inquiry asks whether 
the final rule is a logical outgrowth of the proposal; it does not 
require an agency to combine every related regulatory initiative into a 
single omnibus rulemaking.
    This rulemaking satisfied those APA requirements. The proposed rule 
identified the affected CFR Part and subpart, provided proposed 
regulatory text for subpart E of part 731, described the proposed 
transfer of the suitability-action appeal process from MSPB to OPM, 
explained the proposed procedures for filing and adjudicating appeals, 
invited public comment, and set a comment deadline. The NPRM also 
expressly identified the June 2025 Suitability and Fitness NPRM, 
explained that the June NPRM addressed separate changes to subparts A, 
B, C, and D of part 731, and stated that this suitability-appeals rule 
was limited to subpart E and would operate independently of the June 
NPRM. OPM also addressed the potential cost implications if both 
rulemakings were finalized, further confirming that OPM did not conceal 
the possible interaction between the rulemakings.
    The APA does not prohibit an agency from pursuing several 
rulemakings at the same time, even where those rulemakings concern 
related aspects of a broader regulatory program.
    Agencies may proceed through separate rulemakings where, as here, 
the rules amend different regulatory provisions, address distinct legal 
and operational questions, rest on separate administrative records, and 
can operate independently. This final rule concerns the forum and 
procedures for appealing suitability actions under subpart E of part 
731. The June 2025 Suitability and Fitness rulemaking addressed the 
substantive suitability and fitness standards and the authority and 
procedures for taking suitability actions under other subparts of part 
731. Other personnel rulemakings referenced by commenters concerned 
different regulatory parts or different subjects, such as probationary 
or trial-period appeals, reductions in force, or performance 
appraisals. Those subjects may be related in the broad sense that they 
concern Federal personnel administration, but they are not the same 
rulemaking.
    Nor did the use of separate rulemakings prevent meaningful public 
comment. The proposed rule disclosed the relationship between this 
suitability-appeals rulemaking and the June 2025 Suitability and 
Fitness NPRM, and commenters in fact submitted extensive comments 
addressing the alleged cumulative effects of the rulemakings. The 
comments received demonstrate that interested parties understood OPM 
was proceeding through separate but related rulemakings and had a 
meaningful opportunity to raise interaction-based objections. OPM has 
considered those objections.
    OPM also disagrees that separate rulemakings were an attempt to 
evade the APA. Proceeding separately allowed commenters to focus on the 
specific legal authority, regulatory text, operational effects, and 
policy rationale for each proposal. Combining all contemporaneous 
personnel proposals into a single omnibus rulemaking would not 
necessarily have improved notice or public participation; it could 
instead have obscured the issues by combining distinct statutory 
questions, regulatory provisions, and administrative records in one 
proceeding. The APA does not require that result.
    At the same time, OPM recognizes that commenters' interaction-based 
concerns were principally about the procedural protections that would 
apply to any covered suitability action. OPM has therefore revised 
subpart E to strengthen the appeal process. The final rule clarifies 
the appellant's right to contest an unfavorable suitability 
determination and specified procedural failures; expressly allocates 
burdens of proof; requires the responsible agency to provide a 
complete, indexed, paginated, and certified record of the action; 
requires disclosure or appropriate treatment of withheld, redacted, 
privileged, classified, national-security, or otherwise protected 
material; prohibits reliance on nondisclosed material to affirm a 
suitability action unless the appellant receives notice of the 
substance and a meaningful opportunity to respond, except as otherwise 
authorized by law; codifies separation-of-functions and ex parte 
safeguards; provides objective criteria for investigation and hearings; 
requires an administrative judge to preside over any hearing; requires 
findings on each material charge, specification, and suitability 
factor; and preserves matters within the independent jurisdiction of 
other forums, including EEOC, FLRA, Inspectors General, MSPB, DOL VETS, 
and OSC.
    These revisions address procedural concerns raised by commenters 
without changing the scope of this rulemaking. This final rule does not 
itself amend the substantive suitability factors, expand the grounds 
for taking suitability actions, or decide whether any separate 
amendments to subparts A, B, C, or D of part 731 should be finalized. 
If separate substantive amendments to part 731 are finalized, the 
appeal procedures in this final rule will apply to covered suitability 
actions under part 731. If those separate amendments are not finalized, 
this final rule will still operate as the appeal procedure for 
suitability actions that are otherwise covered by part 731. In either 
circumstance, the procedures in subpart E are capable of operating 
independently.
    For these reasons, OPM does not adopt commenters' argument that the 
APA required a consolidated rulemaking or a reopened comment period. 
OPM has considered the asserted interaction among this rulemaking, the 
June 2025 Suitability and Fitness rulemaking, and other personnel 
rulemakings, and has strengthened the final appeal procedures in 
response to commenters' procedural concerns.

R. Suitability Determinations Versus Security-Clearance or National-
Security Determinations

    Commenter 0329 asserted that the proposed rule appeared to conflate 
suitability determinations with eligibility determinations for access 
to classified information or assignment to, or retention in, sensitive 
national-security positions. OPM agrees that these determinations are 
distinct and clarifies that this rule does not merge them. Part 731 
itself distinguishes suitability determinations and actions

[[Page 49052]]

from determinations of eligibility for access to classified information 
or for assignment to, or retention in, sensitive national-security 
positions made under E.O. 12968, E.O. 10865, E.O. 13467, or similar 
authorities. This final rule amends only the appeal procedures in 
subpart E of part 731 and applies only to a suitability action taken 
because of an unfavorable suitability determination. Revised Sec.  
731.501(a) limits the appeal right to applicants, appointees, and 
employees in the competitive service or career Senior Executive 
Service, as those terms are used in part 731; Sec.  731.501(c) limits 
appealable merits issues to suitability determinations based on the 
factors in Sec.  731.202(b) that resulted in a suitability action; and 
Sec.  731.501(d) makes clear that an unfavorable suitability 
determination that does not result in a suitability action is not 
appealable under this subpart.
    The final rule therefore does not create, expand, or alter any 
appeal right for security-clearance determinations, credentialing 
determinations, national-security eligibility determinations, position-
sensitivity determinations, or other determinations outside part 731. 
References in the final rule to classified information, national-
security requirements, or other legally protected information address 
only how such information must be handled if it appears in the 
suitability-appeal record; they do not expand OPM's jurisdiction in a 
part 731 appeal or authorize OPM to adjudicate a clearance or national-
security eligibility determination in this proceeding.

S. Comments From Federal Agencies

    OPM received several comments in favor of the rule from individuals 
and agencies. Across the submissions, these commenters strongly support 
the rule and view it as a necessary step to streamline and accelerate 
suitability actions in the Federal Government. Commenters emphasized 
that agencies often avoid taking an action because the existing process 
is too burdensome and drawn out, allowing misconduct to persist. They 
argue that this tolerance of wrongdoing damages workplace culture, 
signals that accountability is weak, and discourages supervisors from 
addressing problems. See Comment 166. A significant theme among 
favorable comments involves the need to expedite removal of employees 
who commit serious misconduct. See Comments 089 and 190. Commenters 
recognize that keeping such individuals in the workplace harms others 
and erodes trust, and they believe this rule will enable agencies to 
take faster, more decisive action to protect employees. Overall, 
individuals in support of this rule see it as long overdue, beneficial 
for the efficiency and integrity of the civil service, and likely to 
make Federal workplaces safer and more accountable.
    Several agencies provided comments in support of the rule, 
consistently describing the reform to suitability action appeals as 
necessary, efficient, and beneficial for workforce management. Existing 
procedures are described as too complicated and inefficient, and the 
standards applied by MSPB as overly technical. See Comment 179. 
Agencies expressed frustration with current processes, citing a 
discrepancy between MSPB goals of resolving certain categories of 
appeals within approximately 120 days, while in practice, suitability 
action appeals frequently consume a year or more to reach a final 
resolution, despite them being a small share of MSPB's annual filings. 
See Comments 178, 218, and 309.
    Other agencies recognized the opportunity for consistency and 
benefits of expertise by centralizing suitability appeals within OPM, 
specifically recognizing OPM's exclusive authority over a subset of 
suitability cases pursuant to 5 CFR 731.202(b). Further, agencies 
anticipate the rules would reduce litigation and administrative costs, 
citing considerable attorney, human capital, and management resources 
expended to defend suitability actions before MSPB, including post-MSPB 
judicial review on disproportionate, narrowly focused issues that do 
not need the full scope of MSPB discovery for a fair adjudication. 
Agencies explained that even successfully litigated cases are 
overshadowed by punishing processes and costs to the American public. 
See Comments 188 and 230. Agencies positively noted the rule's 
retention of strong due process protections, including notice, access 
to records, and an opportunity for response and representation. See 
Comment 218. OPM believes this final rule will restore confidence in 
the Federal workforce and eliminate procedural bottlenecks that 
unnecessarily complicate an agency's ability to maintain efficient and 
effective mission performance.
    OPM also considered other options as explained in the alternatives 
section of this final rule.

IV. Section-by-Section Analysis

Authority Citation

    OPM revises the authority citation for part 731 to reflect OPM's 
civil-service administration authorities under 5 U.S.C. 1103, which 
include ``securing accuracy, uniformity, and justice in the functions 
of the Office'' and ``executing, administering, and enforcing'' the 
civil service rules and regulations of the President and the Office and 
the laws governing the civil service.

Subpart E--Suitability Action Appeals

    OPM revises subpart E to remove the prior MSPB appeal procedure and 
establish an OPM appeal process for suitability actions taken because 
of unfavorable suitability determinations. The revised subpart sets out 
the right to appeal, filing procedures, record and response 
requirements, representative provisions, adjudication standards, 
sanctions and protective orders, reconsideration, Director review, and 
finality.
731.501--Right To Appeal
    Section 731.501 establishes the right of an applicant, appointee, 
or employee in the competitive service or career SES, as those terms 
are used in part 731, to appeal to OPM a suitability action taken 
because of an unfavorable suitability determination. The section also 
allocates burdens of proof. The appellant bears the burden, by a 
preponderance of the evidence, to establish the timeliness of the 
appeal, OPM's jurisdiction, and any claim of improper procedure. If the 
appellant contests the unfavorable suitability determination and 
establishes timeliness and jurisdiction, the responsible agency bears 
the burden to establish, by a preponderance of the evidence, the charge 
or charges supporting the unfavorable suitability determination and the 
substantive propriety of the suitability action.
    The section identifies the appealable issues: the unfavorable 
suitability determination based on the factors in Sec.  731.202(b), 
provided it resulted in a suitability action as defined in Sec.  
731.101(a), and specified procedural failures relating to advance 
notice, representation, time to respond, and the written decision. It 
also provides that an unfavorable suitability determination that does 
not result in a suitability action is not appealable under this 
subpart. Finally, the section provides that subpart E is the sole means 
of appealing a suitability action under part 731, while preserving 
matters within the independent jurisdiction of the EEOC, FLRA, 
Inspectors General, MSPB, DOL VETS, and OSC. The section also provides 
that a party cannot obtain judicial review of a decision under this 
subpart.

[[Page 49053]]

731.502--Procedures for Submitting Appeals
    Section 731.502 establishes filing procedures and time limits. 
Appeals and requests to reopen and reconsider must be filed through the 
electronic filing system identified on OPM's website unless OPM grants 
a good-cause exception. An appeal must be filed within 30 calendar days 
from the effective date of the suitability action and is timely if 
electronically filed by 11:59 p.m. Eastern Time on the 30th calendar 
day after the effective date. The section explains how to compute the 
filing period, including special rules for applicants, service by mail, 
weekends, and Federal holidays. Untimely appeals will be dismissed 
unless the appellant demonstrates good cause, as determined by OPM.
    The section also establishes e-filing procedures. Parties and 
representatives must register using a unique email address; 
registration constitutes consent to electronic service; documents will 
be available through OPM's electronic filing system; and access to case 
documents is limited to registered parties and representatives in the 
case. The section requires e-filers to follow OPM filing instructions, 
maintain current contact information, monitor case activity, and use 
the electronic system unless exempted for good cause. OPM may strike a 
document only when an e-filer repeatedly fails to follow filing 
instructions after receiving a show-cause order. Documents filed in the 
system are deemed received on the date of electronic submission.
731.503--Form and Content of Suitability Action Appeals and Agency 
Response
    Section 731.503 specifies the required content of an appeal, 
including the basis for the appeal, contact information for the 
appellant and representative, and supporting documentation. The section 
also governs the responsible agency's response. OPM will notify the 
responsible agency of the appeal; and, unless the OPM adjudicator 
provides otherwise, the responsible agency must respond within 30 
calendar days of notification.
    The section defines ``responsible agency'' as the employing agency 
or, when OPM took, directed, or made the suitability action under 
review, the OPM office or component responsible for that action. When 
OPM is the responsible agency, the adjudicative function must be 
separated from any OPM office or official that participated personally 
and substantially in the suitability determination or action.
    The final rule also addresses the employing agency's role when OPM 
is the responsible agency. Because many relevant records will be in the 
employing agency's possession, Sec.  731.503(b)(3) provides that, when 
OPM is the responsible agency and is not the appellant's employing 
agency, OPM will notify the employing agency of the appeal, and the 
employing agency must furnish requested records and information and 
otherwise participate in the response to the extent OPM directs. 
Section 731.503(c) likewise requires the employing agency to furnish 
documents within the scope of the record of the action that are in its 
possession, and OPM will identify the records the employing agency must 
furnish and the records OPM will provide. Parallel provisions in Sec.  
731.505(d) and (f) provide that the employing agency, when it is not 
the responsible agency, may be required to provide information and will 
receive notice of investigations and of the decision on the appeal.
    The section requires the responsible agency to file a complete, 
indexed, paginated, and certified record of the action. The record must 
include documents considered, relied upon, generated, received, issued, 
or served in investigating, proposing, deciding, directing, or 
effectuating the unfavorable suitability determination and resulting 
suitability action. The record must include, as applicable, documents 
establishing the appellant's status and the authority for the action, 
investigative and adjudicative materials, charge-by-charge and 
suitability-factor analysis, mitigating and exculpatory evidence, the 
rationale for the action selected, the final decision, proof of 
service, implementation documents, and a certification of completeness.
    The responsible agency must serve the appellant with the agency 
record. If documents are withheld, redacted, or protectively handled, 
the responsible agency must identify them in an index or privilege log 
unless identifying the document itself is prohibited by law. OPM may 
require a summary, substitute disclosure, protective order, in camera 
submission, or other procedure sufficient to provide the appellant a 
meaningful opportunity to respond, consistent with applicable law. No 
nondisclosed material may be relied upon to affirm a suitability action 
unless the appellant has received notice of the substance of the 
material and a meaningful opportunity to respond, except as otherwise 
authorized by law.
    The section also permits the appellant to file a reply within 15 
calendar days of the agency response unless OPM provides otherwise. The 
reply may not raise new allegations of error unless the basis rests on 
information first disclosed in the agency response or OPM grants leave 
for good cause. The section further addresses inspection of OPM's 
appellate record, mutual service of documents, certificates of service, 
and acceptance of untimely filings upon a showing of good cause.
731.504--Appellant Representatives
    Section 731.504 preserves the appellant's ability to select a 
representative of choice, provided the designation is submitted in 
writing for the specific appeal. If the selected representative is a 
Federal employee, the representative may not perform representational 
functions while in duty status, including while on official time under 
5 U.S.C. 7131, and may not claim agency reimbursement for expenses 
incurred while performing the representational function.
    The section also allows OPM or the responsible agency, in its sole 
and exclusive discretion, to disallow a representative when the 
representative is an employee of the responsible agency or OPM and the 
representative's activities would cause a conflict of interest or 
position.
731.505--Adjudication of Appeals
    Section 731.505 establishes the adjudication framework. For appeals 
by applicants, appointees, or employees of agencies other than OPM, OPM 
will assign OPM personnel to adjudicate the appeal. Those adjudicators 
must be insulated from officials who participated personally and 
substantially in the challenged action or provided case-specific advice 
concerning that action. The section prohibits adjudicators from 
considering material ex parte communications concerning the merits of 
an appeal. If such a communication occurs, OPM must place a summary in 
the record and provide the parties a reasonable opportunity to respond 
unless disclosure is prohibited by law. The section also disqualifies 
any OPM employee with a prior relationship with the appellant, prior 
involvement in the suitability determination or action, or another 
conflict that would reasonably call the employee's impartiality into 
question. OPM may assign an administrative law judge when necessary.
    For appeals by OPM applicants, appointees, or employees, OPM will 
assign an administrative law judge to adjudicate the appeal. To 
insulate those appeals from agency involvement, OPM will not disturb 
the administrative law judge's initial decision unless a party

[[Page 49054]]

shows harmful procedural irregularity, clear legal error, or material 
factual error that affected the outcome. The section defines harmful 
procedural irregularity and clarifies that assigning an administrative 
law judge does not make 5 U.S.C. 554, 556-557 applicable except to the 
extent independently required by law or expressly incorporated in part 
731.
    The section requires all OPM employees or administrative law judges 
assigned to adjudicate appeals to complete training that complies with 
national training standards for suitability adjudicators and qualifies 
them to review OPM and agency suitability determinations and actions.
    The section also establishes fact-development procedures. OPM may 
require either party, or the employing agency if the employing agency 
is not a party to the appeal, to provide additional information and may 
investigate the facts underlying the suitability determination or 
action if the existing record is insufficient to resolve a material 
issue within OPM's jurisdiction and the investigation is reasonably 
likely to produce material information. If OPM conducts an 
investigation, it must notify the appellant, the appellant's 
representative, and the responsible agency (and, if different, the 
employing agency) of the investigation and the nature of the 
information requested; provide the results; and allow a reasonable 
opportunity to submit argument or additional information.
    OPM's review must be based solely on the developed written record 
unless the written record is insufficiently developed to resolve one or 
more facts material to the outcome, including when resolution of a 
material factual dispute requires evaluation of witness credibility. In 
those cases, OPM will assign an administrative judge to preside over a 
hearing, which will be limited to the material factual issues 
identified by OPM or the administrative judge as necessary to resolve 
the appeal.
    If a party fails to participate in an investigation or hearing, OPM 
may impose sanctions listed in Sec.  731.506(b)(1) through (3), except 
where prohibited by law. OPM may issue an initial decision affirming, 
reversing, modifying, or vacating the unfavorable suitability 
determination and resulting suitability action, in whole or in part. 
The initial decision must make findings on each material charge, 
specification, and suitability factor relied upon to support the 
action. If fewer than all charges or specifications are sustained, OPM 
will determine whether the sustained grounds support the action imposed 
and may affirm, reverse, modify, vacate, or remand the action as 
appropriate.
    The section also addresses remedies. If the appellant prevails, OPM 
will order appropriate relief authorized by law, which may include 
correction, cancellation, or modification of the suitability action; 
correction of relevant records; prospective eligibility or appointment-
related relief; and, where applicable and legally authorized, back pay, 
interest, and reasonable attorney fees consistent with 5 CFR part 550, 
subpart H. The appellant is not entitled to compensatory damages or 
other relief not authorized by law. If reopening or reconsideration is 
pending, the responsible agency must continue to provide ordered relief 
unless OPM issues a stay, but no stay may deprive the individual of pay 
and benefits while the initial decision is pending reconsideration.
731.506--Sanctions and Protective Orders
    Section 731.506 authorizes OPM to issue protective orders or cease-
and-desist directives to protect the integrity of the adjudicatory 
process, prevent threats, intimidation, targeted harassment, improper 
witness contact, disclosure of protected personal information, or 
misuse of nonpublic information obtained through the appeal. OPM may 
act sua sponte or at a party's request, preemptively or at any point in 
the appeal process. A requesting party must file the request through 
OPM's e-filing procedures and include reasons and supporting evidence. 
Any protective order must be no broader than reasonably necessary and 
must not restrict lawful communications protected by law.
    If a party fails to comply with an OPM order, OPM may, except where 
prohibited by law, draw adverse inferences, prohibit the noncompliant 
party from introducing or relying on evidence, or eliminate from 
consideration appropriate parts of the noncompliant party's filings or 
submissions. Any sanction issued under this authority must be 
proportionate, causally related to the violation, and no broader than 
necessary to protect the adjudicatory process.
731.507--Requests for Reconsideration of an Initial Decision
    Section 731.507 permits either party to request that OPM reopen and 
reconsider an initial decision. The request must be filed within 30 
calendar days of issuance of the initial decision through the e-filing 
system and must explain how the asserted ground affected the outcome. 
Any documents or filings related to the request must be submitted at 
the same time.
    OPM may grant reconsideration when the initial decision contains an 
erroneous finding of material fact sufficient to warrant a different 
outcome; is based on an erroneous interpretation of statute or 
regulation or erroneous application of law to the facts; when new and 
material evidence or legal argument is available that, despite due 
diligence, was unavailable when the record closed; or when OPM finds 
good cause. In a reopened and reconsidered appeal, OPM may issue a 
reopened and reconsidered decision affirming, reversing, modifying, or 
vacating the initial decision; require additional argument and 
evidence; take any other action necessary for final disposition; and 
issue a compliance order. There is no further administrative appeal 
from the reopened and reconsidered decision, subject to Director review 
under Sec.  731.508 before finality.
731.508--Review by the OPM Director
    Section 731.508 preserves discretionary review by the OPM Director 
before a decision becomes final under Sec.  731.509. The Director may, 
on the Director's own initiative, reopen and reconsider any initial 
decision or reopened and reconsidered decision before it becomes final. 
The section does not create a party right to request Director review; 
parties seeking review must use the reconsideration process in Sec.  
731.507. If the Director reopens and reconsiders a decision, the 
Director may take any action available under Sec.  731.507(d). Under 
the final rule, the Director may act on the Director's own initiative 
and only before a decision becomes final under Sec.  731.509.
    In response to comments expressing concern that Director review 
could be too open-ended or could undermine the perceived neutrality of 
OPM adjudication, OPM has revised Sec.  731.508 to identify 
nonexclusive considerations that may inform the Director's decision to 
reopen and reconsider a nonfinal suitability appeal decision. In 
determining whether to exercise this authority, the Director may 
consider whether the decision contains clear legal error, rests on an 
erroneous finding of material fact, involves an issue of exceptional 
importance, affects the governmentwide administration of civil-service 
laws, rules, regulations, or OPM policy, creates a conflict among OPM 
decisions, or otherwise warrants Director review.
    This revision responds to commenters who objected to Director 
review as

[[Page 49055]]

insufficiently cabined, while preserving final agency supervision over 
important legal, factual, policy, consistency, and governmentwide civil 
service issues. OPM has retained sua sponte Director review because 
final agency oversight promotes decisional consistency and 
accountability within OPM's adjudicatory process. The revision does not 
create a separate right for parties to request Director review; parties 
may seek reconsideration under Sec.  731.507. If the Director reopens 
and reconsiders a decision under Sec.  731.508, the Director may take 
any action available under Sec.  731.507(d). This structure preserves 
meaningful principal-officer oversight of the decisions of inferior 
officers while clarifying that Director review will occur within the 
rule's record-based adjudicatory framework, including the final rule's 
agency-record, separation-of-functions, ex parte, reconsideration, and 
finality provisions.
    OPM declines to eliminate Director review entirely. Director review 
serves both administrative and constitutional functions. As an 
administrative matter, it ensures that OPM can correct material legal, 
factual, or procedural errors before a decision becomes final; resolve 
recurring or important questions of interpretation; and promote uniform 
application of part 731 across agencies. That review function is 
especially important in a governmentwide personnel system, where 
inconsistent interpretations by subordinate adjudicators could produce 
uneven appeal rights for similarly situated employees in different 
agencies. See 5 U.S.C. 1103(a)(1), (a)(3), (a)(5) (vesting the OPM 
Director with responsibility for securing ``accuracy, uniformity, and 
justice'' in OPM's functions, directing and supervising OPM employees, 
and executing, administering, and enforcing civil service laws and 
regulations).
    Director review also reinforces the rule's consistency with the 
Appointments Clause. The Constitution requires principal officers to be 
appointed by the President with the advice and consent of the Senate, 
while Congress may vest appointment of inferior officers in the 
President alone, courts of law, or heads of departments. U.S. Const. 
art. II, sec. 2, cl. 2. The OPM Director is a presidentially appointed, 
Senate-confirmed officer with authority to appoint subordinate OPM 
officials. See 5 U.S.C. 1102(a), 1103(a)(2). Under the Supreme Court's 
Appointments Clause precedents, inferior officers must remain subject 
to direction and supervision by a properly appointed superior officer. 
See Edmond v. United States, 520 U.S. 651, 663-65 (1997). In the 
adjudicatory context, the Court has treated the availability of review 
by a superior executive officer as a significant feature distinguishing 
inferior officers from principal officers. Id. at 665.
    That principle is particularly relevant where subordinate 
adjudicators exercise significant authority under Federal law. The 
Supreme Court has held that officials who occupy continuing offices and 
exercise significant discretion in conducting adjudications may be 
``Officers of the United States'' rather than mere employees. See 
Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991); Lucia v. SEC, 585 U.S. 
237, 245-51 (2018). The rule need not resolve in every case whether a 
particular OPM adjudicator is an employee or an inferior officer. It is 
enough that the rule preserves supervision by the Director, a principal 
officer, before OPM's decision becomes final. In addition, OPM intends 
to ensure that OPM personnel assigned to adjudicate appeals under this 
subpart are appointed by the Director. Because such adjudicators may 
occupy continuing positions and exercise significant discretion in 
conducting adjudications, appointment by the Director--the head of 
OPM--ensures that any adjudicator who qualifies as an inferior officer 
will have been appointed in the manner the Appointments Clause 
requires. See U.S. Const. art. II, sec. 2, cl. 2.
    The Supreme Court's decision in United States v. Arthrex, 594 U.S. 
1, 22-23 (2021), confirms the importance of that structure. There, the 
Court held that administrative patent judges could not constitutionally 
issue unreviewable final decisions on behalf of the Executive Branch 
while being appointed only as inferior officers. The constitutional 
problem was not that subordinate adjudicators participated in deciding 
cases; it was that their decisions were insulated from review by a 
principal officer. Id. at 25-26. The Court's remedy was to permit 
discretionary review by the Director of the Patent and Trademark 
Office, explaining that the Director need not review every decision, 
but must have authority to review decisions if he chooses. Id. at 27-
28.
    Subpart E follows that model. OPM adjudicators may issue initial 
decisions, and OPM may reopen and reconsider those decisions on party 
request or on its own initiative. In addition, the Director may, in his 
or her discretion, reopen and reconsider any appeal in which OPM has 
issued a decision that has not yet become final, and a decision issued 
by the Director is the final decision of OPM. This structure ensures 
that no subordinate adjudicator has unreviewable authority to bind OPM 
or the Executive Branch in an appeal under part 731.
731.509--Final Decision
    Section 731.509 establishes when OPM decisions become final. An 
initial decision becomes OPM's final decision 30 calendar days after 
issuance unless, before that time, a party timely requests reopening 
and reconsideration under Sec.  731.507 or the Director reopens the 
decision under Sec.  731.508. A timely request for reconsideration 
suspends finality: if OPM denies or dismisses the request without 
reopening the initial decision, the initial decision becomes final 30 
calendar days after issuance of the denial or dismissal unless the 
Director reopens it before that time; and if OPM grants the request, 
the reopened and reconsidered decision becomes final 30 calendar days 
after issuance unless the Director reopens that decision before that 
time. An untimely request does not suspend or otherwise affect 
finality, but if OPM accepts and grants an untimely request for good 
cause, any resulting reopened and reconsidered decision becomes final 
in the same manner. A decision issued by the Director under Sec.  
731.508 that disposes of the appeal is OPM's final decision and is 
effective upon issuance; if the Director remands the appeal or directs 
further proceedings, any resulting decision becomes final under Sec.  
731.509. There is no further right of appeal from a final OPM decision.
    The section also addresses publication and access. OPM will make 
publicly available final merits decisions or de-identified summaries of 
final merits decisions, consistent with FOIA, the Privacy Act, and 
other applicable law. Public summaries will identify the procedural 
posture, sustained and unsustained suitability factors, disposition, 
and remedy without disclosing protected information. Final merits 
decisions will also be made available upon request to the applicant, 
appointee, or employee involved in the proceeding, the representative 
selected under Sec.  731.504, or the representative of the Federal 
agency or office involved in the proceeding who has a need to know.

V. Regulatory Analysis and Related Comments

A. Statement of Need

    This final rule is needed to establish a suitability-specific 
appeal process that resolves challenges to suitability actions more 
promptly, consistently, and effectively while preserving meaningful 
procedural protections. Suitability actions are taken to protect the 
integrity

[[Page 49056]]

and promote the efficiency of the civil service. When such actions 
remain unresolved for extended periods, both the individual and the 
Government are left in uncertainty, agencies may be delayed in 
addressing conduct that presents suitability concerns, and the public 
interest in a trusted Federal workforce is undermined.
    Before this final rule, suitability-action appeals were routed to 
the MSPB by OPM regulation. Congress did not require that forum. MSPB 
adjudicates matters placed within its jurisdiction by law, rule, or 
regulation, and Congress has separately clarified in 5 U.S.C. 7512(F) 
that a suitability action taken by OPM under OPM regulations is not a 
chapter 75 adverse action. OPM therefore has authority to revise its 
own regulatory appeal procedure and to establish an administrative 
review process tailored to suitability actions rather than chapter 75 
litigation.
    OPM is adopting this rule for several related reasons. First, 
suitability appeals require application of OPM's governmentwide 
suitability regulations, suitability factors, action-selection 
standards, and personnel-vetting expertise. Housing these appeals 
within OPM promotes uniform application of part 731 and allows appeals 
to be decided by adjudicators trained in the suitability framework they 
are applying.
    Second, the MSPB process imposes procedures designed for a broader 
range of personnel disputes, including discovery, hearings, petitions 
for full Board review, and judicial review. Those procedures can add 
complexity, cost, and delay to a class of appeals that Congress has 
distinguished from chapter 75 adverse actions.
    OPM considered that MSPB procedures add considerable complexity and 
delay in 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. See 5 U.S.C. 
7701(a). And before reaching a hearing, MSPB regulations allow the 
parties to engage in discovery. See 5 CFR 1201.71-1201.75.
    Under the prior regulatory framework, a suitability appeal filed 
with MSPB could proceed through multiple adjudicative stages. First, 
the appeal was assigned to an MSPB administrative judge, who possessed 
broad authority to conduct the proceeding, including authority to rule 
on discovery motions, issue subpoenas, receive evidence, order 
production of evidence and witness appearances, hold prehearing 
conferences, grant hearing requests, regulate hearings, and issue an 
initial decision. 5 CFR part 1201 also provides for discovery, 
including interrogatories, depositions, requests for production, and 
requests for admission, as well as motions to compel and subpoena 
procedures.
    If a hearing is held, MSPB procedures contemplate hearing 
scheduling, presentation of testimony and evidence, a hearing record or 
transcript, and closure of the record after the hearing or after 
written submissions if the hearing is waived. The administrative judge 
then issues an initial decision containing findings of fact, 
conclusions of law, reasons or bases for those findings, an order 
disposing of the case, and notice of further review rights.
    Then, after the administrative judge's initial decision, either 
party may seek review by the full Board. The initial decision becomes 
final after 35 days only if no petition for review is filed and no 
other action prevents finality. If a party files a petition for review, 
the Board may deny review, grant review, reopen the case, hear oral 
argument, require briefs, remand for further testimony or evidence, or 
take other action necessary for final disposition.
    After a final MSPB decision, a party may seek judicial review. 
Under 5 U.S.C. 7703, an employee or applicant adversely affected or 
aggrieved by a final MSPB order or decision may obtain judicial review, 
generally by filing a petition in the U.S. Court of Appeals for the 
Federal Circuit within 60 days, subject to specific statutory rules for 
certain cases.
    This multi-stage process may be appropriate for matters Congress 
made appealable to MSPB under chapter 75 or other statutes. But OPM has 
determined that it is not necessary or well-tailored for suitability 
appeals that are expressly outside the MSPB's statutory jurisdiction.
    Third, MSPB's ability to provide final Board-level review has 
depended on the existence of a quorum, and recent quorum lapses have 
produced substantial delays in some cases. OPM considered that, during 
the 2017 to 2022 lack-of-quorum period, 14 OPM suitability appeals were 
affected, with individuals and agencies waiting an average of more than 
five years between OPM's suitability action and a Board decision. 
Quorum-related delay is a significant pain point for agencies as well 
as appellants: while an appeal awaits Board action, the responsible 
agency cannot obtain finality on a warranted suitability action, must 
preserve evidence and witness availability for years, and faces 
prolonged uncertainty in staffing decisions. OPM considered that, in 
light of recent judicial decisions holding the President may dismiss 
MSPB members at-will, the MSPB may lose a quorum even more frequently 
going forward. OPM also considered MSPB annual performance information 
showing that initial appeals averaged 109 days during fiscal years 2022 
through 2024, not including additional time for full Board review.
    Fourth, OPM considered the operational effect that lengthy and 
costly appeal procedures may have on agencies' willingness to take 
warranted suitability actions. Suitability actions, including 
cancellation of eligibility, removal, cancellation of reinstatement 
eligibility, and debarment, are tools for protecting the integrity and 
efficiency of the service and, where applicable, allowing time for 
rehabilitation before renewed Federal employment. OPM considered that, 
from fiscal years 2018 through 2024, 71 percent of MSPB suitability 
appeals that were not initially dismissed resulted in settlement. 
Settlement may be appropriate in individual cases. But OPM also 
considered that frequent settlement of suitability appeals may reduce 
the protective effect of debarment or other suitability actions and may 
discourage agencies from taking warranted actions. OPM does not treat 
any single statistic as dispositive. Rather, OPM considered the 
statutory structure, the nature of suitability actions, MSPB procedural 
complexity, quorum-related delay, settlement experience, agency costs, 
and the need for timely finality together.
    OPM received comments asserting that the rule was inadequately 
justified, relied too heavily on efficiency, failed to consider 
reliance interests, and should instead preserve MSPB review or pursue 
alternatives such as MSPB reform, additional MSPB resources, or an 
expedited MSPB track. OPM considered those comments but, as discussed 
above, disagrees that the APA requires OPM to preserve a regulatory 
MSPB appeal route or to rely on reforms outside OPM's control. The 
final rule does not eliminate review of suitability actions. It 
replaces the prior regulatory forum with a specialized OPM appeal 
process and substantially strengthens the proposed procedures in 
response to comments.
    The final rule includes safeguards designed to promote fairness, 
accuracy, and confidence in the new process. It expressly allocates 
burdens of proof; requires the responsible agency to establish the 
charges supporting the unfavorable suitability determination and the 
substantive propriety of the action by a preponderance of the

[[Page 49057]]

evidence; requires a complete, indexed, paginated, and certified record 
of the action; requires service of that record on the appellant; 
requires identification of withheld, redacted, or protectively handled 
material; and prohibits reliance on nondisclosed material to affirm a 
suitability action unless the appellant receives notice of the 
substance of the material and a meaningful opportunity to respond, 
except as otherwise authorized by law. The final rule also codifies 
separation-of-functions protections when OPM is the responsible agency, 
bars adjudicators with prior involvement or conflicts reasonably 
calling impartiality into question, restricts material ex parte 
communications, requires training for adjudicators, provides for 
additional fact development where the record is insufficient, and 
requires an administrative judge to preside over any hearing held to 
resolve material factual disputes. It further requires reasoned initial 
decisions addressing material charges, specifications, and suitability 
factors; provides appropriate remedies for prevailing appellants; 
allows reopening and reconsideration; preserves Director review before 
finality; and provides for public availability of final merits 
decisions or de-identified summaries consistent with applicable law.
    These safeguards address commenters' concerns that streamlining 
should not come at the expense of fairness or accuracy. OPM agrees that 
suitability-action appeals must provide meaningful review, particularly 
because suitability actions can have serious consequences. The final 
rule therefore does not adopt a summary affirmance model. It 
establishes a structured administrative appeal process that preserves 
notice, response, representation, record access, reasoned decision-
making, additional fact development where necessary, hearings where 
material factual disputes, including witness-credibility disputes, 
cannot be resolved on the written record, reconsideration, appropriate 
relief, and transparency.
    OPM concludes that the final rule is necessary to align the appeal 
forum with the statutory and regulatory nature of suitability actions, 
reduce delay and unnecessary procedural complexity, promote uniform 
application of governmentwide suitability standards, and ensure that 
suitability actions are resolved in a manner that protects both 
individual procedural interests and the Government's interest in 
maintaining the integrity and efficiency of the civil service.

B. Impact

    This final rule removes the prior regulatory route for suitability-
action appeals to MSPB and establishes an OPM suitability-action appeal 
process. The rule affects applicants, appointees, and employees in the 
competitive service or career Senior Executive Service, as those terms 
are used in part 731, who are subject to a suitability action because 
of an unfavorable suitability determination. These are the categories 
of individuals covered by part 731 suitability-action procedures; the 
rule does not independently expand the categories of persons subject to 
suitability actions or alter the substantive standards for taking such 
actions.
    For affected individuals, the principal impact is a change in 
appellate forum and procedure. Individuals will no longer appeal part 
731 suitability actions to MSPB under subpart E. Instead, they may 
appeal to OPM, contest the unfavorable suitability determination, and 
raise specified procedural challenges. OPM anticipates that this 
process will allow appellants and agencies to reach final 
administrative resolution more quickly than under the prior MSPB route, 
while preserving meaningful procedural protections.
    The final rule provides safeguards designed to ensure that the new 
process is fair, structured, and reviewable within OPM. The responsible 
agency must prove, by a preponderance of the evidence, the charges 
supporting the unfavorable suitability determination and the 
substantive propriety of the suitability action. The appellant retains 
the burden to establish timeliness, jurisdiction, and any improper-
procedure claim. The responsible agency must file and serve a complete, 
indexed, paginated, and certified record of the action, including the 
charge-by-charge analysis, suitability-factor analysis, mitigating or 
exculpatory evidence, and rationale for the action selected. OPM may 
not rely on nondisclosed material to affirm a suitability action unless 
the appellant receives notice of the substance of the material and a 
meaningful opportunity to respond, except as otherwise authorized by 
law.
    The rule also affects agencies that take or effectuate suitability 
actions. Responsible agencies will need to respond to OPM appeal 
notices, produce the complete record of the action, identify any 
withheld or redacted materials, serve required documents, and comply 
with OPM orders. These obligations may require agencies to organize and 
certify suitability-action records more carefully than under prior 
practice. At the same time, agencies will no longer incur the same 
costs associated with litigating part 731 suitability appeals before 
MSPB, including MSPB discovery, hearing practice, petitions for Board 
review, and related defense obligations.
    OPM will be affected because it will operate the new suitability-
action appeal process. OPM will need to maintain the electronic filing 
system, receive and process appeals, notify responsible agencies, 
adjudicate appeals, manage records, rule on reconsideration requests, 
conduct or direct additional fact development where appropriate, assign 
administrative law judges when required by the rule, maintain 
separation between responsible and adjudicative functions when OPM is 
the responsible agency, and make final merits decisions or de-
identified summaries publicly available consistent with applicable law. 
These responsibilities will require dedicated process management and 
trained adjudicators, but they also replace OPM's prior role in 
preparing and defending suitability actions before MSPB.
    The final rule also limits the impact on other remedial systems. 
Although the OPM process is the sole means of appealing a suitability 
action under part 731, it does not preclude an applicant, appointee, or 
employee from filing a complaint, appeal, or other matter within the 
independent jurisdiction of the EEOC, FLRA, an Inspector General, MSPB, 
DOL VETS, or OSC. Thus, the rule changes the forum for part 731 
suitability appeals but does not displace independent statutory 
remedies for discrimination, prohibited personnel practices, veterans' 
rights, labor-relations matters, or other claims assigned by law to 
another forum.
    OPM expects the final rule to reduce delay and operational costs 
associated with suitability-action appeals while improving consistency 
in the application of governmentwide suitability standards. The rule is 
also expected to improve the Government's ability to resolve 
suitability concerns in a timely manner, thereby supporting the 
integrity and efficiency of the Federal service. At the same time, the 
final rule adds procedural safeguards beyond those proposed in the 
NPRM, including express burden allocations, a complete-record 
requirement, disclosure protections, separation-of-functions 
requirements, ex parte restrictions, adjudicator-disqualification 
rules, training requirements, administrative-

[[Page 49058]]

judge-presided hearings where material factual disputes, including 
witness-credibility disputes, cannot be resolved on the developed 
written record, reasoned written decisions, reconsideration, Director 
review before finality, remedies for prevailing appellants, and public 
availability of final merits decisions or de-identified summaries.

C. Costs

    OPM has updated the cost analysis for this final rule to reflect 
the current regulatory baseline. In the proposed rule, OPM presented a 
current-volume estimate and a separate estimate of potential additional 
impacts if the June 2025 Suitability and Fitness rule were finalized. 
Because the Suitability and Fitness rule is now final, this final rule 
uses the anticipated combined appeal volume as the operative estimate. 
The final analysis also updates wage assumptions to 2026 rates, 
accounts for the procedures established in the final OPM suitability-
action appeal process, and includes the recurring cost of OPM appeal-
staff licenses for the electronic filing system.
    Although the changes in this final rule are separate and distinct 
from the changes made by the Suitability and Fitness rule, the 
Suitability and Fitness rule affects the expected volume of 
suitability-action appeals that will be processed under this subpart. 
The cost analysis below therefore incorporates the expected effects of 
both rulemakings for purposes of estimating the costs and savings 
associated with transferring suitability-action appeals from MSPB 
adjudication to the OPM appeal process established in this final rule.
1. One-Time Implementation Costs
    This 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 
rule, affected agencies will need to review the final rule and update 
policies and procedures governing suitability-action appeals, agency 
records, service, representation, and related internal processing.
    For this cost analysis, OPM assumes that the average salary rate of 
Federal employees performing this work will be the 2026 rate for GS-14, 
step 5, from the Washington, DC, locality pay table: $163,104 annually 
and $78.15 hourly. OPM assumes that the total value of labor, including 
wages, benefits, and overhead, equals 200 percent of the wage rate, 
resulting in an assumed labor cost of $156.30 per hour.
    OPM estimates that, in the first year following publication of this 
rule, affected agencies will spend an average of 80 hours updating 
policies and procedures. This results in an estimated one-time 
implementation cost of approximately $12,500 per agency and 
approximately $1 million governmentwide. This estimate differs from the 
proposed rule primarily because OPM updated the wage assumptions from 
2025 to 2026 rates.
2. Recurring Costs and Savings
    OPM assessed recurring cost impacts by estimating: first, savings 
to agencies, OPM, and MSPB from eliminating MSPB adjudication of 
suitability-action appeals; and second, costs to agencies and OPM to 
process suitability-action appeals under the OPM appeal process 
established in this final rule. The difference between the avoided 
MSPB-related costs and the costs of the new OPM process represents the 
recurring cost impact of the final rule.
    OPM estimates that, under the current framework, MSPB receives 
approximately 63 initial suitability appeals per year, based on MSPB 
annual reports for fiscal years 2018 through 2024. In light of the 
final Suitability and Fitness rule, OPM also estimates that 
approximately 1,226 removal actions presently taken by agencies under 
chapter 75 could be referred to OPM for suitability action instead. 
From FY 2021 through FY 2025, OPM found that OPM suitability actions 
were appealed to MSPB at a rate of 20.8 percent. Applying that rate to 
the estimated 1,226 removal actions yields approximately 255 additional 
appeals per year that are expected to shift from adverse-action appeals 
to suitability-action appeals. Adding those 255 appeals to the 
historical average of 63 initial suitability appeals results in an 
estimated annual volume of 318 suitability-action appeals under this 
final rule.
    OPM recognizes that not all appeals proceed to a hearing. Based on 
MSPB annual reports for fiscal years 2018 through 2024, approximately 
86 percent of suitability appeals were dismissed or settled. Applying 
that rate to the estimated 318 annual suitability-action appeals, OPM 
estimates that approximately 273 appeals per year would resolve before 
a full hearing-equivalent level of effort, while approximately 45 
appeals per year would require the full level of effort associated with 
hearing preparation and adjudication.
    OPM notes that the historical rate of dismissal and settlement may 
overstate the share of appeals that will resolve early under this rule. 
As discussed above, frequent settlement under the MSPB framework partly 
reflected the length, cost, and complexity of MSPB litigation, and this 
rule is expected to reduce the resulting pressure on agencies to settle 
warranted suitability actions. As a sensitivity analysis, OPM therefore 
also considered a substantially lower pre-hearing resolution rate of 50 
percent, under which approximately 159 appeals per year would require 
the full level of effort. Even under that assumption, the rule remains 
a net-savings deregulatory action: avoided MSPB-related costs would 
also increase as more appeals proceed to a full decision, and the 
incremental cost of each additional OPM hearing is small relative to 
the avoided cost of a full MSPB proceeding, so net savings would grow, 
not shrink, as the pre-hearing resolution rate declines.
a. Savings From Eliminating MSPB Suitability-Action Appeals
    Eliminating MSPB adjudication of suitability-action appeals will 
reduce costs for agencies, OPM, and MSPB. These savings arise from 
avoided MSPB litigation and adjudication work, including reduced 
attorney time, reduced agency HR and supervisory time associated with 
appeals that otherwise would be processed as adverse-action appeals 
before MSPB, and reduced MSPB administrative judge time.
    OPM estimates that agencies will avoid approximately $3.75 million 
annually in supervisory and HR personnel time associated with the 255 
adverse-action appeals expected to shift to the suitability-action 
appeal process. This estimate assumes 80 hours of supervisory or HR 
staff time per appeal and uses the 2026 Washington, DC, locality rate 
for GS-15, step 5: $191,850 annually and $91.93 hourly. Applying OPM's 
assumption that the total value of labor equals 200 percent of the 
hourly wage results in an hourly labor cost of $183.86.
    OPM also estimates annual savings of approximately $2.83 million 
from reduced attorney time. This estimate uses the 2026 Washington, DC, 
locality rate for GS-14, step 5: $163,104 annually and $78.15 hourly, 
with total labor cost calculated at 200 percent of the wage rate, or 
$156.30 per hour. OPM assumes that attorneys would spend approximately 
100 hours on appeals that proceed through a full hearing and 
approximately 50 hours on appeals that are dismissed or settled. 
Applying those assumptions to the estimated 45 appeals requiring the 
full level of effort and 273 appeals resolving earlier yields

[[Page 49059]]

approximately $2.83 million in avoided attorney costs.
    MSPB will also avoid work associated with processing suitability-
action appeals. OPM assumes that MSPB administrative judges are paid at 
the 2026 Washington, DC, locality rate for GS-15, step 5, with total 
labor cost of $183.86 per hour. OPM assumes that an administrative 
judge would spend 20 hours on each appeal proceeding through a full 
hearing and 12 hours on each appeal dismissed or settled. Applying 
those assumptions to the estimated 45 full-effort appeals and 273 
dismissed or settled appeals yields approximately $768,000 in annual 
MSPB savings. OPM recognizes that MSPB may also experience additional 
savings from reduced administrative staff support, but OPM lacks 
sufficient information to estimate those additional savings reliably.
    Taking together the estimated savings from avoided agency HR and 
supervisory time, avoided attorney time, and avoided MSPB 
administrative judge time, OPM estimates annual avoided costs of 
approximately $7.35 million before accounting for the costs of 
operating the OPM suitability-action appeal process. OPM does not 
separately claim avoided suitability-staff record-preparation time as 
an additional savings because the final OPM appeal process requires the 
responsible agency to prepare and submit a complete agency record, and 
that work is accounted for as part of the cost of operating the OPM 
appeal process.
b. Costs of Operating the OPM Suitability-Action Appeal Process
    Operating the OPM suitability-action appeal process will impose 
recurring costs on OPM and responsible agencies. These costs consist of 
six principal components: first, time required by suitability staff at 
the responsible agency to prepare the response file and certified 
agency record; second, time required by OPM appeal-review staff and 
deciding officials to review and decide appeals; third, costs 
associated with hearings when a material factual dispute cannot be 
resolved on the developed written record; fourth, costs associated with 
requests to reopen and reconsider initial decisions; fifth, annual 
license costs for OPM appeal staff to use the electronic filing and 
case-management application; and sixth, incremental administrative-law-
judge costs to adjudicate appeals filed by OPM applicants, appointees, 
or employees under Sec.  731.505(b).
    For the first component, OPM estimates that responsible-agency 
suitability staff will spend approximately 20 hours per appeal 
compiling the response file and agency record required by the final 
rule. OPM uses the 2026 Washington, DC, locality rate for GS-13, step 
5: $138,024 annually and $66.14 hourly. Applying the 200-percent labor-
cost assumption results in an hourly labor cost of $132.28. Applying 
these assumptions across the anticipated annual volume yields estimated 
record-preparation costs of approximately $841,000 per year (318 
appeals x 20 hours x $132.28 per hour).
    For the second component, OPM estimates that appeal-review 
personnel will spend approximately 10 hours reviewing each appeal and 
preparing a recommendation, and that an OPM deciding official will 
spend approximately 3 hours reviewing the recommendation and issuing 
the initial decision. OPM assumes appeal-review personnel are paid at 
the 2026 GS-13, step 5, Washington, DC, locality rate, with a total 
labor cost of $132.28 per hour, and deciding officials are paid at the 
2026 GS-14, step 5, Washington, DC, locality rate, with a total labor 
cost of $156.30 per hour. Applying these assumptions across all 318 
anticipated appeals yields estimated costs of approximately $421,000 
per year for appeal review (318 appeals x 10 hours x $132.28 per hour) 
and approximately $149,000 per year for deciding officials (318 appeals 
x 3 hours x $156.30 per hour), for total review-and-decision costs of 
approximately $570,000 per year.
    For the third component, agencies and OPM will incur costs when 
resolution of a material factual dispute requires evaluation of witness 
credibility or the written record is otherwise insufficient to resolve 
facts material to the outcome. The final rule provides that any such 
hearing will be presided over by an administrative judge and will be 
limited to the material factual issues identified by OPM or the 
administrative judge as necessary to resolve the appeal. Because the 
final rule adopts a written-record default, requires a complete 
certified agency record, and limits any hearing to the material factual 
issues that cannot be resolved on the developed written record, OPM 
expects hearings to be infrequent. Informed by the small share of 
former MSPB suitability appeals that turned on witness credibility, OPM 
estimates that approximately 18 percent of the approximately 45 appeals 
per year expected to require the full level of adjudicatory effort--
approximately 8 appeals per year, or roughly 2.5 percent of all 
anticipated appeals--will require a hearing. For each hearing, OPM 
assumes 6 hours of administrative-judge time for preparation, 
presiding, and ruling on hearing-related motions, at the 2026 GS-15, 
step 5, Washington, DC, locality rate ($191,850 annually and $91.93 
hourly, or $183.86 per hour with the 200-percent labor-cost 
assumption), totaling $1,103; 20 hours of responsible-agency attorney 
time at the GS-14 rate of $156.30 per hour, totaling $3,126; 15 hours 
of responsible-agency suitability or other staff time at the GS-13 rate 
of $132.28 per hour, totaling $1,984; 10 hours of OPM deciding-official 
time at the GS-14 rate of $156.30 per hour, totaling $1,563; and 
transcription costs of approximately $1,500 per hearing, reflecting one 
hearing day of approximately 300 transcript pages at $5.00 per page. 
These assumptions yield estimated costs of approximately $9,276 per 
hearing and approximately $74,000 per year (8 hearings x $9,276).
    For the fourth component, OPM will incur costs to process requests 
to reopen and reconsider initial decisions. Based on the narrow grounds 
for reopening under Sec.  731.507 and the MSPB's experience with 
petitions for review of initial decisions, OPM estimates that parties 
will request reopening and reconsideration in approximately 15 percent 
of appeals--approximately 48 requests per year--and that OPM will grant 
approximately 33 percent of those requests, or approximately 16 per 
year. OPM assumes a GS-13 reviewer will spend approximately 1 hour 
screening each request and preparing a recommended disposition, 
yielding approximately $6,300 per year (48 requests x 1 hour x $132.28 
per hour). OPM assumes that, for each request granted, a GS-13 reviewer 
will spend approximately 3 hours reviewing the case and making a new 
recommendation, and that a GS-14 deciding official will spend 
approximately 2 hours reviewing the recommendation and issuing any 
reopened and reconsidered decision. Applying those assumptions to the 
approximately 16 granted requests yields approximately $11,351 per year 
(16 requests x ((3 hours x $132.28) + (2 hours x $156.30))), for total 
reconsideration-related costs of approximately $18,000 per year.
    For the fifth component, OPM will incur annual license costs for 
OPM appeal staff to use the electronic filing and case-management 
application. OPM estimates those recurring license costs at 
approximately $16,000 annually. This is a change from the proposed 
rule, which did not separately include recurring e-filing license 
costs.
    For the sixth component, OPM will incur incremental costs for 
appeals filed

[[Page 49060]]

by OPM applicants, appointees, or employees, which Sec.  731.505(b) 
requires to be adjudicated by an administrative law judge to safeguard 
impartiality. Based on the small share of former MSPB suitability 
appeals involving OPM's own workforce, OPM anticipates approximately 3 
such appeals per year. Because the record-preparation and review costs 
of those appeals are already captured in the first and second 
components, this component reflects only the incremental cost of 
administrative-law-judge adjudication. OPM assumes approximately 12 
hours of administrative-law-judge time per appeal at the 2026 AL-3, 
step F, rate ($199,296 annually and $95.49 hourly, or $190.98 per hour 
with the 200-percent labor-cost assumption), yielding approximately 
$7,000 per year (3 appeals x 12 hours x $190.98 per hour). This 
estimate is conservative because such appeals are expected to be 
resolved on the written record in most cases.
    Taking together these six components--approximately $841,000 for 
responsible-agency record preparation; approximately $570,000 for OPM 
appeal review and initial decisions; approximately $74,000 for 
hearings; approximately $18,000 for reconsideration; approximately 
$16,000 for annual e-filing licenses; and approximately $7,000 for 
administrative-law-judge adjudication of appeals by OPM applicants, 
appointees, or employees--OPM estimates that the OPM suitability-action 
appeal process will cost agencies and OPM approximately $1.52 million 
annually (approximately $1,525,000) at the anticipated volume of 318 
suitability-action appeals per year. OPM anticipates that existing 
adjudicatory personnel can assume the preparatory work necessary to 
compile response files and respond to information requests for appeals 
of OPM's own suitability actions. For the work of reviewing appeals and 
making recommendations for initial decisions, OPM anticipates that it 
will likely need two additional personnel at the 2026 GS-13, step 5, 
Washington, DC, locality rate to handle the additional workload 
expected as a result of the final Suitability and Fitness rule.
c. Total Cost Impact
    OPM has updated the final cost analysis to reflect the current 
regulatory baseline, including final amendments to part 731 made by the 
Suitability and Fitness rule. OPM is not presenting alternative cost 
scenarios in this final rule. Instead, because the Suitability and 
Fitness rule is now final, OPM uses the anticipated combined volume of 
318 suitability-action appeals per year as the operative estimate.
    Taking into account approximately $7.35 million in annual avoided 
MSPB-related costs and approximately $1.52 million in annual costs to 
operate the OPM suitability-action appeal process, this final rule is 
expected to result in annual net savings to the Government of 
approximately $5.83 million. These recurring annual savings are 
separate from the one-time implementation costs of approximately $1 
million.
    OPM notes that the final estimate differs from the proposed rule. 
The proposed rule estimated approximately $574,000 in annual savings if 
suitability-action appeal volumes remained at then-current levels and 
approximately $5.9 million in annual savings if both this rulemaking 
and the Suitability and Fitness rule were finalized. The final rule no 
longer uses the current-volume-only scenario as the operative estimate, 
updates wage assumptions to 2026 rates, includes recurring electronic 
filing license costs, and reflects the procedural requirements in the 
final regulatory text.
d. Comments on the Cost Analysis
    Commenters 0236 and 0282 broadly disputed OPM's efficiency 
rationale and argued that the rule may shift or increase costs rather 
than reduce them, including by creating new OPM resource needs or 
increasing downstream litigation. OPM acknowledges these comments but 
does not agree that they undermine the cost estimate. The final cost 
analysis identifies the principal labor costs avoided by eliminating 
MSPB adjudication of suitability-action appeals and the principal costs 
of operating the OPM suitability-action appeal process. Commenters 0236 
and 0282 did not provide quantified data that would allow OPM to 
estimate additional downstream litigation costs attributable to this 
rule.
    Commenter 0267 argued that savings are illusory and largely offset 
by the need to build and staff a new internal OPM appeals system. 
Commenter 0267 also expressed concern that the rule could create an 
under-resourced appeals function, especially at startup, and merely 
shift case backlogs from MSPB to OPM. OPM acknowledges this concern but 
disagrees that the final cost estimate fails to account for OPM 
resource needs. The final cost analysis includes OPM appeal-review 
staff time, OPM deciding-official time, hearing-related costs, 
reconsideration costs, and recurring e-filing license costs. OPM has 
also updated the analysis to reflect the anticipated increase in appeal 
volume following the final Suitability and Fitness rule and estimates 
that it will likely need two additional GS-13 personnel to support 
appeal review and recommendations.
    Commenter 0294 argued that cost savings cannot be reliably 
projected because the estimate appears to depend on a projected 
decrease in settlements. OPM clarifies that the estimate does not 
depend on an assumption that settlement rates will decrease. Rather, 
OPM uses historical MSPB dismissal and settlement rates to estimate the 
expected level of effort associated with appeals that resolve before a 
full hearing-equivalent level of effort and appeals that require the 
full level of effort. The cost model therefore uses settlement and 
dismissal data to allocate expected labor hours, not to assume any 
particular future settlement outcome.
    Commenter 0258 argued that this rule could not be evaluated 
separately from the Suitability and Fitness rule. OPM agrees that the 
final cost analysis should reflect the current regulatory baseline. The 
proposed rule presented both a current-volume estimate and a potential 
combined estimate if the June 2025 Suitability and Fitness rule were 
finalized. In this final rule, because the Suitability and Fitness rule 
is now final, OPM has removed the current-volume-only scenario as the 
operative estimate and incorporated the anticipated appeal-volume 
effects of that final rule, including the estimate that approximately 
1,226 removal actions presently taken under chapter 75 could be 
referred to OPM for suitability action and that approximately 255 
additional appeals per year may shift from adverse-action appeals to 
suitability-action appeals.
    Commenter 0058 asserted that the cost-benefit analysis was 
fundamentally flawed. OPM acknowledges the comment but notes that 
Commenter 0058 did not provide additional detail or alternative 
quantitative assumptions supporting that assertion. OPM has 
nevertheless updated the final cost analysis to reflect the final 
regulatory baseline, 2026 pay rates, the expected combined appeal 
volume, the final rule's procedural requirements, and annual e-filing 
license costs.
    Commenters 0303 and 0338 asserted that the projected savings are 
minimal. OPM disagrees. The proposed rule estimated approximately 
$574,000 in annual savings under then-current appeal volumes, and 
approximately $5.9 million if both the appeal-rulemaking and the June 
2025 Suitability and Fitness rule were finalized. The final analysis 
now uses the final Suitability and Fitness rule as part of the 
operative

[[Page 49061]]

baseline and estimates approximately $5.83 million in annual net 
savings. OPM concludes that annual net savings of that magnitude are 
not minimal, particularly when considered together with the final 
rule's objective of establishing a specialized suitability-action 
appeal process.
    Commenter 0303 also argued that OPM's projected cost analysis 
failed to account for an increase in suitability actions used to remove 
employees. OPM disagrees. Both the proposed rule and this final rule 
account for the possibility that approximately 1,226 removal actions 
presently taken by agencies under chapter 75 could be referred to OPM 
for suitability action, and this final rule incorporates the resulting 
estimated 255 additional annual appeals into the operative cost model.
    Commenter 0246 objected that OPM's cost estimates are based on 
unclear or faulty assumptions and questioned the credibility of OPM's 
implementation plan. OPM disagrees. Commenter 0246 questioned OPM's 
projected hearing-related costs, but the commenter's estimate was based 
on 63 appeals per year. The final rule updates the model to reflect 318 
appeals per year, including 255 additional appeals expected as a result 
of the final Suitability and Fitness rule. OPM also clarifies that the 
hearing-rate assumption is derived from seven years of MSPB 
suitability-appeal data and is used to distinguish appeals expected to 
require a full hearing-equivalent level of effort from those expected 
to resolve earlier.
    Commenter 0246 also raised concerns about OPM's estimated costs for 
administrative judges. OPM disagrees that the estimate is understated. 
The final rule provides for hearings only when a material factual 
dispute cannot be resolved on the developed written record, including 
when resolution requires evaluation of witness credibility, and any 
hearing held under Sec.  731.505(d) will be presided over by an 
administrative judge. OPM's calculations therefore assume that 
administrative judges participate only in the subset of cases requiring 
a hearing; the rule does not assume that administrative judges will be 
dedicated exclusively to suitability-action appeals. The final cost 
analysis quantifies these assumptions, estimating approximately 8 
hearings per year and itemizing the associated administrative-judge, 
attorney, agency-staff, deciding-official, and transcription costs.
    OPM disagrees that the cost estimate is understated merely because 
the proposal initially discussed a smaller baseline volume of appeals. 
The final rule's cost model uses the higher projected appeal volume and 
accounts for the fact that not every appeal will require the same level 
of adjudicatory effort. Some appeals are expected to be dismissed as 
untimely, outside OPM's jurisdiction, or otherwise procedurally 
defective; some are expected to be resolved on the developed written 
record; some may require additional information or investigation; and 
only a subset are expected to require a hearing. The final rule's 
procedures reflect that structure. OPM's review is based on the 
developed written record except where the written record is 
insufficient to resolve a material factual dispute, including a 
material witness-credibility dispute. Any hearing held under Sec.  
731.505(d) will be presided over by an administrative judge and limited 
to the material factual issues identified as necessary to resolve the 
appeal.
    OPM also disagrees that the cost estimate for administrative judges 
is understated. The final rule does not assume that administrative 
judges will adjudicate every appeal or that any administrative judge 
will be dedicated exclusively to suitability-action appeals. Rather, 
administrative judges are expected to participate in the subset of 
matters requiring that level of adjudicatory involvement, including 
hearings under Sec.  731.505(d) and appeals by OPM applicants, 
appointees, or employees under Sec.  731.505(b). This is consistent 
with the final regulatory text, which uses administrative-judge 
participation as a procedural safeguard where warranted, not as the 
staffing model for every case.
    OPM further clarifies that the reference to a ``separate cadre'' of 
staff does not mean that every person supporting suitability-action 
appeals will perform only that function on a full-time basis. OPM 
intends to maintain functional separation between personnel involved in 
taking or directing suitability actions and personnel involved in 
adjudicating appeals. That separation is required by the final rule 
when OPM is the responsible agency. It does not require OPM to create 
idle full-time positions or prevent OPM from assigning qualified 
personnel to other compatible duties when appeal workload permits. The 
final rule is therefore consistent with a staffing model in which 
existing adjudicatory or suitability personnel perform some functions 
and OPM adds capacity where needed to support the projected appeal 
volume.
    OPM also disagrees with the commenter's suggestion that part-time 
use of specialized staff undermines the efficiency rationale for the 
rule. The purpose of the rule is not to maximize utilization of each 
individual staff role in isolation; it is to replace a multi-stage MSPB 
process with a suitability-specific OPM process that can be managed 
within OPM, is not dependent on MSPB quorum or Board-level review, and 
applies procedures proportionate to the issues presented in part 731 
appeals. The final rule uses a written-record default, targeted record-
development authority, hearings when material factual disputes, 
including witness-credibility disputes, cannot be resolved on the 
written record, and reconsideration standards tailored to OPM's 
process. Those design choices reduce unnecessary procedural layers 
while preserving safeguards for cases that require more intensive 
review.
    OPM also notes that the final rule adds procedural protections that 
may increase some OPM processing costs compared with the proposal but 
improve the fairness and reliability of the process. These include 
express burdens of proof, a complete indexed and certified agency 
record, disclosure and substitute-disclosure procedures for withheld or 
protected material, a rule against reliance on nondisclosed material 
absent notice and a meaningful opportunity to respond except as 
authorized by law, separation-of-functions safeguards, ex parte 
restrictions, adjudicator-disqualification rules, training 
requirements, written findings on material charges and suitability 
factors, and public availability of final merits decisions or de-
identified summaries. These protections reflect OPM's consideration of 
comments asserting that efficiency should not come at the expense of 
accuracy or procedural fairness.
    Finally, OPM has updated the implementation assumptions to reflect 
that OPM has secured access to an existing electronic case-management 
system to receive, track, and manage appeal submissions, and has 
updated the regulatory impact analysis to include the annual recurring 
license cost for OPM staff. OPM therefore disagrees that the final rule 
lacks a reasonable implementation plan. The final analysis reflects a 
higher projected caseload, clarifies the basis for hearing-related 
assumptions, does not assume full-time dedicated administrative-judge 
work where the workload does not require it, and accounts for the final 
rule's actual procedural framework.
    Commenter 0183 expressed concern that OPM would need to build a new 
electronic filing system. OPM clarifies that it is leveraging an 
existing electronic case-management system to receive, track, and 
manage suitability-

[[Page 49062]]

action appeal submissions. The final cost analysis therefore includes 
approximately $16,000 in annual recurring license costs for OPM appeal 
staff, rather than costs to build an entirely new electronic filing 
platform.
    Commenter 0183 also questioned whether OPM is sufficiently staffed 
to handle the expected appeal workload and questioned the hourly time 
assumptions used to calculate costs for judges and attorneys. OPM has 
updated the final analysis to reflect the anticipated increase in 
appeals and the expected need for two additional GS-13 personnel. OPM 
also concludes that the time assumptions used in the final cost 
analysis reflect the structural differences between MSPB litigation-
style proceedings and OPM's streamlined administrative review process. 
The final cost estimate accounts for the final rule's record-based 
review process, the complete agency-record requirement, the 
availability of hearings where the written record is insufficient to 
resolve material factual disputes, and the reconsideration process 
established in the final regulatory text.

D. Benefits

    This final rule is expected to provide substantial procedural, 
operational, and programmatic benefits. By replacing the prior MSPB 
appeal route with a suitability-specific OPM appeal process, the rule 
is expected to reduce unnecessary delay, cost, and procedural 
complexity while preserving meaningful review for individuals subject 
to suitability actions. The rule does not eliminate an appeal; it 
establishes a more tailored appeal process for determining whether the 
unfavorable suitability determination and resulting suitability action 
are supported and whether required suitability procedures were 
followed.
    A principal benefit of the rule is more timely finality for both 
appellants and agencies. Under the prior regulatory framework, 
suitability appeals could proceed through MSPB administrative-judge 
proceedings, discovery, potential hearings, petitions for full Board 
review, and judicial review. That multi-stage process may be 
appropriate for matters Congress made appealable to MSPB under chapter 
75 or other statutes, but OPM has determined that it is not necessary 
for regulatory suitability appeals under part 731. The final rule 
instead provides a written-record default, targeted record development 
where needed, hearings when material factual disputes, including 
witness-credibility disputes, cannot be resolved on the written record, 
reopening and reconsideration standards tailored to this process, and 
Director review before finality. This structure is expected to shorten 
the time needed to reach a final administrative resolution.
    The rule also reduces the Executive Branch's dependency on MSPB 
Board-level review and quorum availability for this limited class of 
regulatory appeals. Suitability actions are designed to protect the 
integrity and promote the efficiency of the service. Prolonged 
uncertainty can burden appellants, delay agency workforce decisions, 
and weaken the protective function of suitability actions. By placing 
suitability appeals within OPM, the agency responsible for 
governmentwide suitability policy and administration, the rule allows 
OPM to allocate resources, manage caseloads, and maintain continuity in 
the resolution of suitability appeals without relying on the 
availability of a separate Board quorum.
    The rule is also expected to promote greater consistency and rigor 
in suitability adjudication. Suitability appeals require application of 
OPM's part 731 regulations, suitability factors, action-selection 
principles, and personnel-vetting standards. The final rule requires 
OPM employees and administrative law judges assigned to adjudicate 
appeals to complete training that complies with national training 
standards for suitability adjudicators. Centralizing review in OPM is 
expected to produce more uniform application of governmentwide 
suitability standards and reduce variation that may arise when 
suitability appeals are processed as a small subset of a broader 
personnel-litigation docket.
    The final rule also strengthens procedural protections compared 
with the proposal. It expressly allocates burdens of proof; requires 
the responsible agency to prove, by a preponderance of the evidence, 
the charges supporting the unfavorable suitability determination and 
the substantive propriety of the suitability action; requires a 
complete, indexed, paginated, and certified agency record; requires 
service of that record on the appellant; requires identification of 
withheld, redacted, or protectively handled material; and generally 
prohibits reliance on nondisclosed material to affirm a suitability 
action unless the appellant receives notice of the substance of the 
material and a meaningful opportunity to respond, except as otherwise 
authorized by law. The rule also adds separation-of-functions 
protections, ex parte restrictions, adjudicator-disqualification rules, 
ALJ adjudication or ALJ-presided hearings where required, reasoned 
initial decisions addressing material charges and suitability factors, 
remedies for prevailing appellants, and public availability of final 
merits decisions or de-identified summaries consistent with applicable 
law. These safeguards are expected to improve confidence in the OPM 
appeal process while avoiding procedures not necessary in every 
suitability appeal.
    The rule may also improve agency accountability and workforce 
integrity. A costly, lengthy, and uncertain appeal process may 
discourage agencies from pursuing warranted suitability actions, 
particularly where the action is intended to mitigate risk, protect 
mission functions, or ensure sufficient time for rehabilitation before 
renewed Federal employment. A more prompt and suitability-specific 
appeal process may increase agencies' willingness to take appropriate 
action when supported by the record, while ensuring that unsupported or 
procedurally defective actions are corrected. This benefits the public 
by helping agencies maintain a trusted workforce and by ensuring that 
suitability decisions are resolved on the merits rather than avoided 
because of unnecessary procedural burden.
    Finally, the rule aligns the appeal procedure with the statutory 
distinction between suitability actions and chapter 75 adverse actions. 
Congress has provided that a suitability action taken by OPM under OPM 
regulations is not a chapter 75 adverse action. This final rule 
reflects that distinction by replacing a chapter 75-style appellate 
model with procedures designed for part 731 suitability actions. On 
balance, OPM expects the final rule to reduce operational costs, 
improve timeliness, promote consistent suitability adjudication, 
preserve meaningful procedural protections, and more effectively 
protect the integrity and efficiency of the Federal service.

E. Alternatives

    OPM considered retaining the existing regulatory framework, under 
which individuals subject to suitability actions may appeal to MSPB. 
OPM declines to adopt that alternative. Although MSPB review has 
historically provided an external adjudicatory forum, OPM concludes 
that retaining the existing process would not adequately address the 
principal problems this rule is intended to solve: delay, procedural 
complexity, duplicative layers of review, and inconsistent alignment 
between the nature of suitability actions and the procedures used to 
review them. Suitability actions are distinct from chapter 75 adverse 
actions, and Congress has made clear in 5 U.S.C.

[[Page 49063]]

7512(F) that a suitability action taken by OPM under OPM regulations is 
not a chapter 75 action. OPM therefore concludes that a suitability-
specific OPM appeal process is more appropriate than continuing to 
route these regulatory appeals through MSPB.
    OPM also considered creating a two-step process under which an 
appellant would first appeal to OPM and then retain a further appeal to 
MSPB. OPM rejects that alternative because it would add, rather than 
reduce, procedural layers. OPM's prior experience with the OPM Review 
Panel demonstrates that adding internal OPM review while retaining MSPB 
review did not achieve streamlined finality; many appellants proceeded 
to MSPB after the Review Panel issued a decision. The lesson OPM draws 
from that history is not that OPM review is infeasible, but that a 
duplicative OPM-plus-MSPB model would preserve the same delay and cost 
concerns that this rule is designed to address.
    Several commenters, including commenters 0207/0286, 0303, 0332, 
0331, 0333, and 0329, urged OPM to consider alternatives such as 
retaining MSPB jurisdiction, creating an expedited MSPB track for 
suitability appeals, increasing MSPB funding and staffing, ensuring 
MSPB Board vacancies are filled, using specialized MSPB administrative 
judges, improving agency training, working with Congress, or assigning 
appeals to another independent third party. Other commenters, including 
0204, 0287, and 0294, similarly recommended preserving MSPB review or 
using existing adjudicatory expertise.
    OPM considered these alternatives but does not adopt them. Many 
would require action by Congress, MSPB, or other actors outside OPM's 
control, such as appropriations, statutory amendments, changes to MSPB 
internal case-management rules, creation of a new adjudicatory body, or 
appointment and confirmation of Board members. The APA does not require 
OPM to adopt an alternative that OPM cannot implement through this 
rulemaking, particularly where the alternative would not achieve OPM's 
objective of establishing a single, specialized, and timely 
suitability-appeal process.
    OPM also considered whether improved agency training or management 
guidance would be sufficient. OPM agrees that training remains 
important and will continue to provide governmentwide suitability 
guidance and training. But training alone would not address the 
structural features of the existing appeals process that OPM identified 
as resulting in protracted proceedings: MSPB procedures designed for 
broader personnel litigation, potential discovery and hearing practice 
in every MSPB appeal, petitions for Board review, judicial review of 
MSPB decisions, and recurring vulnerability to Board quorum lapses. 
Training may improve the quality of initial suitability actions, but it 
would not create a more timely, suitability-specific appellate process.
    In response to comments, OPM also considered whether to preserve 
additional procedural features of MSPB practice, including automatic 
discovery, a categorical right to a hearing, or a broader mixed-case 
process within the suitability appeal. OPM declines to adopt those 
alternatives. OPM concludes that automatic discovery and a hearing in 
every appeal are not necessary for the limited issues reviewable under 
part 731 and would undermine the efficiency gains this rule is intended 
to achieve. At the same time, OPM agrees that the appeal process must 
include safeguards sufficient to ensure fair and accurate review. The 
final rule therefore strengthens the proposed process by adding express 
burdens of proof, requiring a complete certified agency record, 
requiring disclosure or legally appropriate substitute treatment of 
withheld or redacted material, prohibiting reliance on nondisclosed 
material absent notice and a meaningful opportunity to respond except 
as otherwise authorized by law, establishing separation-of-functions 
and ex parte safeguards, requiring trained adjudicators, providing 
objective criteria for additional fact development and hearings, 
requiring an administrative judge to preside over any hearing, 
requiring reasoned findings on material charges and suitability 
factors, and providing reconsideration and Director review before 
finality. The rule also provides that administrative judge hearings 
will be held when the written record is insufficiently developed to 
resolve one or more facts material to the outcome of the appeal, 
including all cases where resolution of a material factual dispute 
requires evaluation of witness credibility. Thus the regulations 
provide for hearings where they are relevant to resolving the case 
without creating a categorical right to hearings in cases where 
material facts are not in dispute. These revisions address commenters' 
procedural concerns while preserving the rule's central objective: 
replacing the MSPB process with a suitability-specific OPM appeal 
process.
    OPM further considered whether Director review should be eliminated 
or made available as a party-requested appeal. OPM declines both 
alternatives. The final rule preserves party-requested reopening and 
reconsideration under Sec.  731.507 and separately preserves the 
Director's ability, on the Director's own initiative and before 
finality, to reopen and reconsider an initial decision or reopened-and-
reconsidered decision under Sec.  731.508. OPM revised Sec.  731.508 to 
identify considerations that may warrant Director review, including 
clear legal error, erroneous material fact, exceptional importance, 
governmentwide civil-service administration, OPM policy, conflict among 
OPM decisions, or other reasons warranting review. This approach 
preserves principal-officer supervision and decisional consistency 
without creating an additional appeal layer as of right. Under the 
Supreme Court's decision in United States v. Arthrex, 141 S. Ct. 1970 
(2021), OPM cannot constitutionally permit inferior officers to issue 
final decisions without review by a principal officer.
    OPM recognizes that the final rule does not adopt every alternative 
proposed by commenters. But OPM has considered the principal 
alternatives and concludes that they would either fail to address the 
problems identified, depend on actions outside OPM's control, preserve 
duplicative or lengthy review, or undermine the suitability-specific 
process OPM is establishing. OPM instead adopts a final rule that 
changes the appeal forum while adding significant procedural 
protections. OPM concludes that this approach best balances timely 
resolution, consistent application of part 731, fairness to appellants, 
and the Government's interest in protecting the integrity and 
efficiency of the Federal service.

F. Reliance Interests

    OPM considered potential reliance interests arising from the prior 
MSPB appeal procedure and concludes that those interests do not warrant 
retaining MSPB as the forum for part 731 suitability-action appeals. 
OPM recognizes that applicants, appointees, employees, agencies, 
unions, and representatives have operated for many years under a 
regulatory framework that routed suitability-action appeals to MSPB. 
OPM also recognizes that parties may have valued MSPB procedures, 
including discovery, hearings, petitions for Board review, and judicial 
review of MSPB decisions.
    Those reliance interests, however, concern a regulatory forum and 
regulatory procedures, not a statutory entitlement to MSPB 
adjudication. MSPB jurisdiction over part 731 suitability appeals 
existed because

[[Page 49064]]

OPM's regulations placed those appeals before MSPB. Congress did not 
require that suitability actions be appealed to MSPB, and suitability 
actions are distinct from chapter 75 adverse actions. OPM may revise a 
regulatory appeal forum prospectively through notice-and-comment 
rulemaking, provided it acknowledges reliance interests and gives a 
reasoned explanation for the change. See FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515-16 (2009); Department of Homeland 
Security v. Regents of the University of California, 591 U.S. 1, 30-33 
(2020); Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221-22 (2016).
    OPM has done so here. The final rule is not a withdrawal of review; 
it replaces one regulatory forum with another and adds a structured 
suitability-specific appeal process. Individuals subject to a 
suitability action will continue to receive the pre-action protections 
provided in part 731, including advance written notice of the charges 
and reasons, notice of the right to respond, access to the materials 
relied upon, a minimum 30-day response period, the right to 
representation, and a written decision. The final rule also preserves 
an appeal in which the appellant may contest the unfavorable 
suitability determination and raise specified procedural defects.
    In addition, the final rule strengthens the procedures proposed in 
the NPRM. It expressly allocates burdens of proof; requires the 
responsible agency to prove the charges supporting the unfavorable 
suitability determination and the substantive propriety of the action 
by a preponderance of the evidence; requires a complete, indexed, 
paginated, and certified agency record; requires service of that record 
on the appellant; requires identification of withheld, redacted, or 
protectively handled material; and prohibits reliance on nondisclosed 
material to affirm a suitability action unless the appellant receives 
notice of the substance of that material and a meaningful opportunity 
to respond, except as otherwise authorized by law. The rule also 
provides separation-of-functions safeguards when OPM is the responsible 
agency, ex parte restrictions, adjudicator-disqualification rules, 
training requirements, objective criteria for additional fact 
development, administrative-judge-presided hearings where material 
factual disputes, including witness-credibility disputes, cannot be 
resolved on the developed written record, reasoned initial decisions, 
reconsideration, Director review before finality, remedies for 
prevailing appellants, and public availability of final merits 
decisions or de-identified summaries.
    These safeguards address the core interests underlying commenters' 
reliance concerns: fair notice, meaningful opportunity to respond, 
access to the evidence supporting the action, impartial review, 
reasoned decision-making, and appropriate relief. The final rule does 
not preserve every procedural feature of MSPB litigation, but reliance 
on the prior regulatory forum does not require OPM to retain procedures 
that OPM has reasonably determined are not necessary for part 731 
suitability appeals and that contribute to delay, cost, and duplicative 
review.
    OPM also considered reliance interests in other statutory and 
regulatory remedies. The final rule makes clear that the part 731 
appeal process is the sole means of appealing a suitability action 
under part 731, but it does not preclude an applicant, appointee, or 
employee from filing a complaint, appeal, or other matter within the 
independent jurisdiction of the EEOC, FLRA, an Inspector General, MSPB, 
DOL VETS, or OSC. Thus, the rule does not displace independent remedies 
for discrimination, prohibited personnel practices, whistleblower 
reprisal, veterans' rights violations, labor-relations matters, or 
other claims committed by law to another forum.
    Nor does the rule reopen final decisions issued under the prior 
framework or eliminate rights that vested under a final adjudication. 
The rule operates prospectively as a change to the appeal forum and 
procedures for suitability actions governed by subpart E, and it does 
not affect appeals filed with the MSPB before the effective date of 
this final rule, which will continue to be adjudicated by the MSPB. 
Parties may no longer rely on the continued availability of the prior 
regulatory MSPB route for future part 731 suitability appeals, but they 
retain meaningful procedural protections and any independent statutory 
remedies otherwise available.
    OPM therefore concludes that any reliance interests associated with 
the former MSPB appeal route are outweighed by OPM's reasons for 
adopting a suitability-specific appeal process: aligning the appeal 
forum with the regulatory nature of part 731 suitability actions, 
reducing delay and unnecessary procedural complexity, promoting 
consistent application of OPM's governmentwide suitability standards, 
and protecting both individual procedural interests and the integrity 
and efficiency of the Federal service.

VI. Procedural Issues and Regulatory Review

A. 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 affects suitability and fitness regulations which 
apply primarily to Federal agencies and employees. Although some 
Federal contractors may be small entities, the nature of the changes in 
this rulemaking is not expected to result in economic impacts to non-
agency entities.

B. Regulatory Review

    OPM has examined the impact of this rule as required by E.O.s 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 E.O. 12866, as supplemented by Executive Order 13563. This rule 
is an E.O. 14192 deregulatory action. OPM estimates this rule generates 
$4.7 million in annualized savings in 2024 dollars at a 7% discount 
rate, discounted relative to year 2024, over a perpetual time horizon. 
That figure is derived as follows. In 2026 dollars, OPM estimates the 
rule produces approximately $5.83 million in recurring annual savings 
and approximately $1 million in one-time implementation costs incurred 
in fiscal year 2026. Converting to 2024 dollars using the GDP price 
deflator (approximately 2.2 percent annual inflation, a two-year 
conversion factor of approximately 0.957) yields approximately $5.58 
million in recurring annual savings and approximately $0.96 million in 
one-time costs. Because the final rule does not apply to appeals filed 
with the MSPB before its effective date, OPM assumes the recurring 
savings phase in at 50 percent (approximately $2.79 million) in fiscal 
year 2027 and reach the full $5.58 million in fiscal year 2028 and each 
year thereafter over a perpetual horizon. Discounting those flows to 
2024 at a 7 percent rate produces a present value of savings of 
approximately $67.3 million and a present value of costs of 
approximately

[[Page 49065]]

$0.8 million, for a net present value of approximately $66.5 million; 
multiplying by the 7 percent discount rate to annualize over a 
perpetual horizon yields approximately $4.7 million in annualized net 
savings.

C. Severability

    If any of the provisions of this rule as finalized are 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. In enforcing civil service protections and 
merit system principles, OPM will comply with all applicable legal 
requirements.

D. 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 E.O. 13132, 
it is determined that this rule does not have sufficient Federalism 
implications to warrant preparation of a Federalism Assessment.

E. Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of E.O. 12988.

F. 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.

G. Congressional Review Act

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 
801 et seq.) requires most final rules to be submitted to Congress 
before taking effect. OPM will submit to Congress and the Comptroller 
General of the United States a report regarding the issuance of this 
rule before its effective date. The Office of Information and 
Regulatory Affairs in the Office of Management and Budget has 
determined that this rule is not a major rule as defined by the CRA (5 
U.S.C. 804).

H. Paperwork Reduction Act

    This final rule contains information collection requirements within 
the meaning of the Paperwork Reduction Act of 1995, as amended (44 
U.S.C. chapter 35). Depending on the population, currently suitability 
and vetting information is collected through the following OMB Control 
Numbers.

 3206-0261 (Standard Form 85, Questionnaire for Non-Sensitive 
Positions)
 3206-0258 (Standard Form 85P, Questionnaire for Public Trust 
Positions and SF 85P-S, Supplemental Questionnaire for Selected 
Positions)
 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 https://www.reginfo.gov/public/do/PRAMain 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 records notice: Personnel Vetting Records System, DUSDI 02-
DoD (83 FR 52420).
    In addition, OPM suitability adjudication records are currently 
covered by the system of records notice (SORN) CENTRAL-9, Personnel 
Investigations Records (81 FR 70191). After reviewing that SORN in 
light of the changes in the Suitability and Fitness rule and this 
rulemaking, OPM is proposing to rescind the existing system of records 
and establish a new system of records titled CENTRAL-9, OPM Suitability 
Adjudications Files. Individual agencies should each have a SORN that 
covers the agency's adjudication and referral records. Agencies should 
evaluate whether the agency-specific SORNs must be updated to permit 
sharing information with OPM as part of the appeals process.
    On November 15, 2023, a new information collection, the Personnel 
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 adopting an e-filing system for use in collecting and 
maintaining adjudication records for a variety of different existing 
regulatory provisions. OPM has submitted a request for a new 
information collection to the Office of Management and Budget for this 
system (see 91 FR 46802 (July 24, 2026)). OPM will not conduct or 
sponsor, and a person is not required to respond to, an information 
collection unless it displays a currently valid OMB control number.
    To the extent the final rule requires Federal agencies to submit 
agency responses, agency records, certifications, or other documents in 
their official capacity, those submissions are not collections from 
``persons'' for purposes of the Paperwork Reduction Act. However, 
submissions from appellants, representatives, or other non-agency 
parties may constitute information collections subject to the Paperwork 
Reduction Act.

List of Subjects in 5 CFR Part 731

    Administrative practice and procedure, Authority delegations 
(Government agencies), Government contracts, Government employees, 
Investigations.

Signing Statement

    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.

Office of Personnel Management
Jerson Matias,
Federal Register Liaison.

    Accordingly, for the reasons stated in the preamble, OPM amends 5 
CFR part 731 as follows:

PART 731--SUITABILITY AND FITNESS

0
1. The authority citation for part 731 is revised to read as follows:

    Authority: 5 U.S.C. 1103, 1302, 2301, 2302, 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. E.O. 14210, 90 FR 
9669. Presidential Memorandum of January 31, 2014, 3 CFR, 2014 
Comp., p. 340. Presidential Memorandum of March 20, 2025, 90 FR 
13683. 5 CFR parts 1, 2, 5, and 6.


0
2. Revise Subpart E to read as follows:

[[Page 49066]]

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 Sanctions and protective orders.
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 of appeal. An applicant, appointee, or employee in the 
competitive service or career Senior Executive Service, as those terms 
are used in this part, may appeal to OPM a suitability action taken 
against the appellant because of an unfavorable suitability 
determination.
    (b) Burden of proof. (1) The appellant bears the burden to 
demonstrate, by a preponderance of the evidence:
    (i) The timeliness of the written appeal;
    (ii) That OPM possesses jurisdiction over the appeal; and
    (iii) If the appellant challenges the suitability action based on 
improper procedure under paragraph (c)(2) of this section, that the 
responsible agency failed to provide one or more of the procedural 
protections identified in paragraph (c)(2) of this section.
    (2) If the appellant contests the unfavorable suitability 
determination under paragraph (c)(1) of this section, and after the 
appellant establishes timeliness and jurisdiction, the responsible 
agency bears the burden to establish, by a preponderance of the 
evidence, the charge or charges supporting the unfavorable suitability 
determination and the substantive propriety of the suitability action 
taken. This paragraph does not shift to the responsible agency the 
appellant's burden under paragraph (b)(1)(iii) of this section to 
demonstrate improper procedure.
    (c) 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 whether the responsible agency failed 
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.
    (d) 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).
    (e) Exclusive appeal procedure. The procedures in this subpart are 
the sole means of appealing a suitability action under this part, but 
do not otherwise preclude an applicant, appointee, or employee from 
filing a complaint, appeal, or other matter within the independent 
jurisdiction of the Equal Employment Opportunity Commission, Federal 
Labor Relations Authority, an Inspector General, Merit Systems 
Protection Board, the Department of Labor's Veterans' Employment and 
Training Service, or the Office of Special Counsel. A party cannot 
obtain judicial review of a decision under this subpart.


Sec.  731.502  Procedures for submitting appeals.

    (a) Filing an appeal. An applicant, appointee, employee, or 
authorized representative seeking to file an appeal or reconsideration 
under this subpart must utilize the electronic filing system identified 
on OPM's website. Unless a party demonstrates good cause and seeks 
approval from OPM, OPM will not accept pleadings, evidence, or other 
documents via electronic mail or postal 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.
    (c) E-filing procedures. (1) All parties and their representatives 
to an appeal or request to reopen and reconsider must register as 
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 or 
exempted under paragraph (c)(7) of this section.
    (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 strike a document where an e-
filer repeatedly fails to follow these instructions following receipt 
of a show cause order.
    (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

[[Page 49067]]

system means that, effective upon OPM's processing of a proper 
withdrawal, pleadings, evidence, orders, and other documents filed by a 
party, a party's representative, or 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 of e-filing 
registration by a party or representative will not be considered good 
cause for staying a case.
    (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 shall state the basis 
of the appellant's appeal; the name, address, and email address or 
phone number of the appellant and appellant's representative, if any; 
and any documentation supporting the appellant's appeal.
    (b) Agency response. (1) Upon receipt of the appeal, OPM will 
notify the agency responsible for the suitability action (responsible 
agency) 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 include any other documents or responses requested by OPM.
    (2) For purposes of this subpart, responsible agency means the 
employing agency or, when OPM took, directed, or made the suitability 
action under review, the OPM office or component responsible for that 
action. When OPM is the responsible agency, the adjudicative function 
must be separated from any OPM office or official that participated 
personally and substantially in the suitability determination or 
action.
    (3) When OPM is the responsible agency and is not the appellant's 
employing agency, OPM will also notify the employing agency of the 
appeal. The employing agency must furnish to OPM, within the time OPM 
specifies, any documents or information in its possession that are 
within the scope of the record of the action or that OPM otherwise 
requests, and must otherwise participate in the response to the appeal 
to the extent OPM directs.
    (c) Record of the action. The responsible agency must file a 
complete, indexed, paginated, and certified record of the action with 
OPM. The record of the action includes all documents considered, relied 
upon, generated, received, issued, or served in investigating, 
proposing, deciding, directing, or effectuating the unfavorable 
suitability determination and consequent suitability action, regardless 
of whether such documents are maintained by the employing agency, OPM, 
an OPM investigative or adjudicative component, or another authorized 
investigative or personnel-vetting entity. When the responsible agency 
is not the employing agency, the employing agency must furnish to the 
responsible agency or to OPM, within the time OPM specifies, any 
documents within the scope of the record of the action that are in the 
employing agency's possession; OPM will identify for the employing 
agency the records the employing agency must furnish and the records 
OPM will provide. The record must include, as applicable:
    (1) documents establishing the appellant's status, position, 
appointment or application, and the legal authority under which the 
action was taken or directed;
    (2) all investigative, vetting, personnel, application, and 
adjudicative materials considered or relied upon by the office or 
component that took or directed the action;
    (3) the charge-by-charge analysis, suitability-factor analysis, 
consideration of mitigating, rehabilitative, contradictory, or 
exculpatory evidence, and rationale for the action selected;
    (4) the written final decision, proof of service, effective-date 
documentation, appeal-rights notice, and documents implementing the 
action;
    (5) any direction from OPM to an employing agency to effectuate the 
action and any employing-agency implementation documents; and
    (6) a certification that the submitted record is complete.
    The responsible agency must serve the appellant with the agency 
record. The responsible agency must identify any withheld, redacted, or 
protectively handled document in an index or privilege log, unless 
identifying the document itself is prohibited by law. OPM may require a 
summary, substitute disclosure, protective order, in camera submission, 
or other procedure sufficient to provide the appellant a meaningful 
opportunity to respond, consistent with applicable law. No nondisclosed 
material may be relied upon to affirm the suitability action unless the 
appellant has received notice of the substance of the material and a 
meaningful opportunity to respond, except as otherwise authorized by 
law.
    (d) 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 not raise new allegations of error 
unless the basis rests on information first disclosed in the agency 
response or unless OPM grants leave for good cause.
    (e) Inspection of OPM's appellate record. The parties may inspect 
OPM's appellate record on request, subject to the Privacy Act, 
applicable legal privileges, classified information or national 
security requirements, protective orders issued by OPM, and any other 
applicable limitation on disclosure required by law.
    (f) Service of Documents. The parties will serve on each other 
copies of any and all information submitted to OPM with respect to an 
appeal, subject to the Privacy Act, applicable privileges, classified 
information or national security requirements, protective orders issued 
by OPM, and any other applicable limitation on disclosure required by 
law. 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.
    (g) 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.

    (a) Designation of representative. 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.
    (b) Federal employee representatives; official time and 
reimbursement. If the

[[Page 49068]]

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.
    (c) Disallowance of representative. 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 ofthe 
responsibleagency or OPMand the representative's activities would cause 
a conflict of interest or position.


Sec.  731.505  Adjudication of appeals.

    (a) Appeals by non-OPM applicants, appointees, or employees. OPM 
will assign OPM personnel to adjudicate an appeal under this subpart by 
an applicant, employee, or appointee of an agency other than OPM. OPM 
personnel assigned to adjudicate an appeal under this subpart shall be 
insulated from officials who participated personally and substantially 
in the challenged personnel action or provided case-specific advice 
concerning that action. OPM adjudicators shall not consider material ex 
parte communications concerning the merits of an appeal. If such a 
communication occurs, OPM will place a summary of the communication in 
the record and provide the parties a reasonable opportunity to respond, 
unless disclosure is prohibited by law. In addition, no OPM employee 
may be assigned to adjudicate an appeal if the employee has a prior 
relationship with the appellant, had prior involvement in the 
suitability determination or suitability action under appeal, or has 
any other conflict that would reasonably call the employee's 
impartiality into question. When necessary, OPM may assign an 
administrative law judge to adjudicate an appeal.
    (b) Appeals by OPM applicants, appointees, or employees. OPM will 
assign an administrative law judge to adjudicate an appeal under this 
subpart by an OPM applicant, appointee, or employee. To insulate the 
adjudication of appeals by such individuals 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, a clear error of law, or a material factual error that 
affected the outcome of the appeal. For purposes of this paragraph, the 
term harmful procedural irregularity means an irregularity in the 
application of procedures that 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. The assignment of an administrative law judge under this 
paragraph or paragraphs (a) or (d) of this section does not make 5 
U.S.C. 554, 556, or 557 applicable to an appeal under this subpart 
except to the extent those provisions are independently required by law 
or expressly incorporated in this part.
    (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) OPM may require either party, or 
the employing agency if the employing agency is not a party to the 
appeal, to provide additional information and may investigate the facts 
underlying an unfavorable suitability determination or suitability 
action in the course of adjudicating an appeal if OPM determines, in 
its sole discretion, that the existing record is insufficient to 
resolve a material issue within OPM's jurisdiction and that the 
investigation is reasonably likely to produce information material to 
resolving that issue.
    (2) When OPM conducts an investigation under this paragraph, OPM 
will:
    (i) Inform the appellant, the appellant's representative, if any, 
and the responsible agency, and, if different, the employing agency, of 
the investigation and the nature of the information requested; and
    (ii) Provide the appellant, the appellant's representative, if any, 
and the responsible agency, and, if different, the employing agency, 
with the results of the investigation and a reasonable opportunity to 
submit argument or additional information to support their positions.
    (3) OPM's review of an unfavorable suitability determination and 
consequent suitability action must be based solely on the developed 
written record unless the written record is insufficiently developed to 
resolve one or more facts material to the outcome of the appeal, 
including when resolution of a material factual dispute requires 
evaluation of witness credibility.
    (4) In cases where the resolution of a material factual dispute 
requires evaluation of witness credibility, or where the developed 
written record is insufficient to resolve one or more facts material to 
the outcome of the appeal, OPM will assign an administrative judge to 
preside over a hearing. The hearing will be limited to the material 
factual issues identified by OPM or the administrative judge as 
necessary to resolve the appeal.
    (e) Failure to participate. If a party fails to participate in an 
investigation or hearing pursuant to paragraph (d), OPM may, except 
when prohibited by law, impose any sanction listed at Sec.  
731.506(b)(1) through (3).
    (f) Initial decision. (1) OPM may issue an initial decision that 
affirms, reverses, modifies, vacates, or remands the unfavorable 
suitability determination and consequent suitability action, in whole 
or in part. OPM will notify the appellant, the responsible agency, and, 
if different, the employing agency in writing of its decision on the 
appeal.
    (2) The initial decision must make findings on each material 
charge, specification, and suitability factor relied upon to support 
the action. If fewer than all charges or specifications are sustained, 
OPM will determine whether the sustained grounds support the 
suitability action imposed and may affirm, reverse, modify, vacate, or 
remand the action, as appropriate.
    (g) Remedies. (1) If the appellant is the prevailing party, OPM 
will order appropriate relief authorized by law, which may include 
correction, cancellation, or modification of the suitability action; 
correction of relevant records; prospective eligibility or appointment-
related relief; and, where applicable and legally authorized, back pay, 
interest, and reasonable attorney fees consistent with subpart H of 
part 550 of this chapter. The appellant is not entitled to compensatory 
damages or other relief not authorized by law.
    (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 the individual of pay and benefits 
while the initial decision is pending reconsideration.


Sec.  731.506  Sanctions and protective orders.

    (a) Cease-and-desist order. OPM may issue a protective order or 
cease-and-desist directive to protect the integrity of the adjudicatory 
process, prevent threats, intimidation, targeted harassment, improper 
witness contact, disclosure of protected personal

[[Page 49069]]

information, or misuse of nonpublic information obtained through 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 prescribed at 
Sec.  731.502(c) and must include a statement of reasons justifying the 
request, together with any relevant documentary evidence. Any 
protective order issued by OPM must be no broader than reasonably 
necessary and must not restrict lawful communications protected by law.
    (b) Failure to comply with an OPM order. When a party to an appeal 
fails to comply with an order issued under paragraph (a) of this 
section, 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.
    (4) Any sanction issued under this paragraph (b) must be 
proportionate, causally related to the violation, and no broader than 
necessary to protect the adjudicatory process.


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 e-
filing system identified on OPM's website 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 
fact 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.


Sec.  731.508  Review by the OPM Director.

    The Director may, on the Director's own initiative and before a 
decision becomes final under Sec.  731.509, reopen and reconsider any 
initial decision or reopened and reconsidered decision. In determining 
whether to exercise this authority, the Director may consider, among 
other things, whether the decision contains clear legal error; rests on 
an erroneous finding of material fact; involves an issue of exceptional 
importance, an issue affecting the governmentwide administration of the 
civil service laws, rules, regulations, or OPM policy, or a conflict 
among OPM decisions; or otherwise warrants Director review. This 
section does not create a right to request Director review. Upon 
reopening and reconsideration, the Director may take any action 
described in Sec.  731.507(d).


Sec.  731.509  Final decision.

    (a) The initial decision becomes OPM's final decision 30 calendar 
days after issuance unless, before that time, a party timely requests 
reopening and reconsideration under Sec.  731.507 or the Director 
reopens the decision under Sec.  731.508.
    (b) A timely request under Sec.  731.507 suspends finality. If OPM 
denies or dismisses the request without reopening the initial decision, 
the initial decision becomes OPM's final decision 30 calendar days 
after issuance of the denial or dismissal, unless the Director reopens 
the initial decision under Sec.  731.508 before that time. If OPM 
grants the request, a reopened and reconsidered decision becomes OPM's 
final decision 30 calendar days after issuance unless the Director 
reopens that decision under Sec.  731.508 before that time.
    (c) An untimely request under Sec.  731.507 does not suspend or 
otherwise affect finality. If OPM accepts and grants an untimely 
request for good cause, any resulting reopened and reconsidered 
decision becomes final as provided in paragraph (b) of this section.
    (d) A decision by the OPM Director under Sec.  731.508 that 
disposes of the appeal is OPM's final decision and is effective upon 
issuance. If the Director remands the appeal or directs further 
proceedings, any resulting decision becomes final under this section.
    (e) There is no further right of appeal of a final decision by OPM.
    (f) OPM will make publicly available final merits decisions or de-
identified summaries of final merits decisions issued under this 
subpart, consistent with 5 U.S.C. 552, the Privacy Act, and other 
applicable law. Public summaries will identify the procedural posture, 
sustained and unsustained suitability factors, disposition, and remedy, 
without disclosing protected information. OPM will also make a final 
merits decision available upon request to the applicant, appointee, or 
employee involved in the proceeding; the individual's representative 
under Sec.  731.504; or a representative of the Federal agency or 
office involved in the proceeding who has a need to know.

[FR Doc. 2026-15650 Filed 7-31-26; 8:45 am]
BILLING CODE 6325-66-P