Feds Fire Appeal Board for Job Fitness Fights
Published Date: 8/3/2026
Rule
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.
Analyzed Economic Effects
5 provisions identified: 3 benefits, 0 costs, 2 mixed.
OPM Replaces MSPB for Suitability Appeals
If you are an applicant, appointee, or employee in the competitive service or career Senior Executive Service, you must appeal a suitability action under 5 CFR part 731 to OPM instead of the Merit Systems Protection Board. This change takes effect September 2, 2026, and does not apply to appeals already filed with MSPB before that date.
Stronger Record and Disclosure Rights
The responsible agency must produce a complete, indexed, paginated, and certified record that includes charge-by-charge analysis, suitability-factor analysis, and mitigating or exculpatory evidence. Agencies must identify withheld or redacted material and generally cannot rely on nondisclosed material unless you receive notice and a meaningful chance to respond.
Written-Record Default; Hearing When Needed
OPM sets written-record review as the default but requires a hearing presided by an administrative judge when the written record cannot resolve a material factual dispute or a material credibility issue. For appeals by OPM applicants, appointees, or employees, an administrative law judge will adjudicate the appeal and preside over hearings.
Burden and Evidence Rules Defined
Under the new rules, the appellant (you) must prove timeliness, jurisdiction, and any improper-procedure claim, while the responsible agency must prove the charges supporting an unfavorable suitability determination. Both sides are governed by a preponderance-of-the-evidence standard.
Preserves Other Independent Forums
The rule makes the OPM process the exclusive means to appeal a part 731 suitability action to OPM, but it preserves matters within the independent jurisdiction of the EEOC, FLRA, Inspectors General, MSPB, DOL VETS, and the Office of Special Counsel. You may still file in those forums when they have independent jurisdiction.
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