Suitability Action Appeals
Published Date: 2/6/2026
Proposed Rule
Summary
The Office of Personnel Management wants to make it easier and faster for people to appeal decisions about their job suitability. This change affects federal employees and job applicants by streamlining the review process to keep things fair and efficient. If you want to share your thoughts, make sure to comment by March 9, 2026!
Analyzed Economic Effects
8 provisions identified: 2 benefits, 4 costs, 2 mixed.
MSPB Appeals Removed; OPM Is Sole Forum
If you are an applicant, appointee, or employee in the competitive service or a career Senior Executive Service (SES) position, you will no longer be able to appeal suitability actions to the Merit Systems Protection Board (MSPB). Instead, appeals of suitability actions would be made only to the Office of Personnel Management (OPM) under a newly proposed OPM appeals process.
OPM Decision Is Final; Limited Further Review
OPM's initial decision becomes final if neither party requests reopening and reconsideration within 30 calendar days. There would be no further administrative review or appeal from OPM's final decision; the OPM Director may, however, reopen and reconsider a decision sua sponte before it becomes final.
30-Day E‑Filing Deadline for Appeals
Under the proposal you must file an appeal using OPM's electronic filing system within 30 calendar days of the effective date of the suitability action. OPM will not review untimely filings unless you demonstrate good cause, and the appellant bears the burden to prove timeliness and OPM jurisdiction.
Monetary Relief for Prevailing Appellants
When you prevail on an OPM appeal, OPM proposes providing relief including any back pay, interest, and reasonable attorney fees consistent with 5 CFR part 550 subpart H. However, back pay, interest, and attorney fees are not payable until the decision is final under Sec. 731.509.
Standard of Review; Hearings for Material-Fact Disputes
OPM will review appeals on the written record and will affirm an agency decision if supported by a preponderance of the evidence. If the written record is insufficient because of disputes over material facts, OPM may hold a hearing to evaluate witness credibility, conduct an additional investigation, or reverse or vacate the agency decision.
May Increase Agency Use of Suitability Actions
OPM states that eliminating MSPB appeals and providing a faster, internal appeal process may increase agencies' likelihood of pursuing suitability actions when warranted to protect the integrity and efficiency of the service.
New Cease‑and‑Desist Powers and Sanctions
OPM would be able to issue cease-and-desist directives to stop harassing communications and impose penalties for noncompliance, including drawing inferences against the noncompliant party, prohibiting evidence, or eliminating consideration of filings.
Limits on Using Agency Employees as Representatives
You may represent yourself or designate a representative, but if your representative is a Federal employee they may not represent you while in a duty status or claim agency reimbursement. OPM may disallow a representative who is an agency or OPM employee for conflict-of-interest, inability to be released from duty, or unreasonable government cost.
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