Suitability Action Appeals

OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Part 731</CFR> <RIN>RIN 3206-AO97</RIN> <SUBJECT>Suitability Action Appeals</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Proposed rule with request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Personnel Management (OPM) is proposing amendments to the review process for suitability actions. The purpose of the proposed rule is to streamline suitability action appeals procedures, thereby improving the efficiency, rigor and timeliness by which OPM and agencies resolve challenges to suitability actions and ensure the integrity and efficiency of the service. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before March 9, 2026. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments through the Federal eRulemaking Portal at <E T="03">http://www.regulations.gov.</E> All submissions received must include the agency name and docket number or Regulation Identifier Number (RIN). Where possible, please arrange and identify your comments on the regulatory text by subpart and section number; if your comments relate to the supplementary information, please refer to the heading and page number. Comments received after the close of the comment period will be marked “late,” and OPM is not required to consider them in formulating a final decision. If you cannot submit comments electronically, please contact the individual listed in the further information section. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at <E T="03">https://www.regulations.gov</E> without change, including any personal identifiers or contact information. As required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in the docket for this rulemaking at <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For questions, contact Mr. Joe Knouff, Suitability Executive Agent Programs, by email at <E T="03">SuitEA@opm.gov</E> or by phone at (202) 599-0090. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Authority and Background</HD> Congress has long granted the President authority to ensure that those employed in the competitive service  <SU>1</SU> <FTREF/> or career appointments to the Senior Executive Service (SES) are suitable for Federal employment. When OPM or an agency with delegated authority determines an individual is not suitable for employment in the competitive service or career SES, OPM or the agency takes a suitability action to protect the integrity or promote the efficiency of the service. The suitability standards and procedures are implemented under the authority of 5 U.S.C. 3301, 3302, and 7301. Historically, the President delegated to OPM and its predecessor, the Civil Service Commission, the authority to prescribe both qualification standards and suitability standards, and to conduct both examinations of applicants' qualifications and investigations of their suitability for appointment and continuing employment. See 5 U.S.C. 1104(a)(1). These standards and procedures are implemented through OPM's regulations at Title 5, Code of Federal Regulations part 731 (5 CFR part 731), which include procedures governing suitability actions and the general process for appealing a suitability action. <FTNT> <SU>1</SU>  For the purposes of the Suitability and Fitness regulation at 5 CFR part 731, “competitive service or career SES refers to a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and a career appointment to a position in the SES. See 5 CFR 731.101(a). </FTNT> Suitability standards and procedures play a key role in protecting the Federal government against potential risks posed by those entrusted to work for it. Every day, America's adversaries seek to undermine the effective performance of government functions and the confidentiality of sensitive government information. Employees who are untrustworthy or unvetted pose a threat to the effective performance of agency missions, workplace safety, and data security. Successive presidential administrations spanning almost 20 years have emphasized the importance of enhanced risk management of the Federal government's trusted workforce through efforts at modernizing processes to ensure only trusted individuals enter and remain in the Federal workforce. In May 2018, the OPM Director and the Director of National Intelligence, in their respective roles as Suitability and Credentialing Executive Agent and Security Executive Agent, launched the Trusted Workforce 2.0 initiative, a key goal of which is to provide vetting processes that enable the government to continuously vet the Federal workforce to ensure they remain suitable or fit for service over time. The Trusted Workforce 2.0 initiative recognizes that as the technologies and tactics used by America's adversaries evolve, so must the government's approach to ensuring its workforce remains trusted. Modernizing suitability procedures that allow the government to quickly resolve any risks discovered in the Federal workforce is crucial to supporting this long-standing goal to better protect the Federal government's critical missions. Suitability and fitness determinations examine “character or conduct that may have an adverse impact on the integrity or efficiency of the service,” such as criminal or dishonest conduct, and deception or fraud in examination or appointment. 5 CFR 731.101, 731.201, 731.202. The objective of the suitability and fitness adjudicator is to establish a reasonable expectation that employment or continued employment of an individual either would or would not protect the integrity or promote the efficiency of the service. 5 CFR 731.201. When there is evidence that the individual's employment would not protect the integrity or promote the efficiency of the service, the individual may be found unsuitable or unfit. If the suitability determination is unfavorable, the adjudicator must then determine what “suitability action” is appropriate. See § 731.203(a). OPM's regulations define a “suitability action” to include “[c]ancellation of eligibility,” “[r]emoval,” “[c]ancellation of reinstatement eligibility,” and “[d]ebarment.” See § 731.101(a). This rule proposes to return the venue to hear suitability action appeals from the Merit System Protection Board (MSPB) to OPM, thereby honoring congressional intent and streamlining the suitability action and appeals process in a manner that results in savings to agency operational costs and the American public, while also providing due process and more expeditiously arriving at resolutions that protect the integrity and promote the efficiency of the service. OPM is proposing to no longer permit individuals in any status, whether an applicant, appointee, or employee, as those terms are defined in 5 CFR 731.101(a), to appeal suitability actions to the MSPB. At the same time, OPM proposes to introduce new procedures by which an individual may appeal a suitability action to OPM. OPM recently proposed separate changes to subparts A, B, C, and D of 5 CFR part 731. See 90 FR 23467 (June 3, 2025). The proposed changes in this present rulemaking are limited to subpart E of this part and are separate and distinct from the changes proposed in the June 2025 Suitability and Fitness Notice of Proposed Rulemaking (June NPRM) at 90 FR 23467. The June NPRM addresses updates to the specific factors used to evaluate an individual's suitability or fitness for Federal service, as directed by E.O. 14210 of February 11, 2025, <E T="03">Implementing the President's “Department of Government Efficiency” Workforce Optimization Initiative,</E> (see 90 FR 9669, Feb. 14, 2025) and OPM's and agencies' delegated authority to take suitability actions based on post-appointment conduct as directed by Presidential Memorandum on March 20, 2025, <E T="03">Strengthening the Suitability and Fitness of the Federal Workforce,</E> (see 90 FR 13683, Mar. 25, 2025). This present rule is limited to appeals of suitability actions. The appeal processes proposed in this rule would operate independently of the changes proposed in the June NPRM and could serve in an appeal of a suitability action irrespective of how OPM ultimately completes the June NPRM. In proposing to discontinue MSPB appeals for suitability actions, OPM has considered that judicial and legislative history demonstrates clear congressional intent to exclude suitability actions from standard civil service Chapter 75 procedures—including MSPB appeals. In the early 2010s, two decisions involving individuals in the competitive service limited agencies' ability to mitigate risk through suitability actions by forcing actions based on post-appointment conduct to proceed through Chapter 75 procedures. First, in 2011 the MSPB decided in <E T="03">Scott</E> v. <E T="03">OPM</E> (116 M.S.P.R. 356 (2011), modified by 117 M.S.P.R. 467 (2012)) that suitability actions could not be taken for post-appointment conduct. Then, in 2015, the Federal Circuit held in <E T="03">Archuleta</E> v. <E T="03">Hopper</E> (786 F.3d 1340 (Fed. Cir. 2015)) suitability-based removals were subject to Chapter 75 adverse action procedures. Congress almost immediately repudiated this interpretation of Chapter 75 by the courts and clarified that suitability authority is separate and distinct from Chapter 75 removal authority. Specifically, in 2015, Congress added 5 U.S.C. 7512(F) to clarify that “a suitability action taken by the Office under regulations prescribed by the Office, subject to the rules prescribed by the President under this ti ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 99k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━