Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OPM shifts suitability action appeals from MSPB to agency-run review process, (Aug 3, 2026)

By Patricia K. Ruiz, J.D.

The final rule establishes a new adjudication framework, adds procedural safeguards, and limits further review of decisions under Part 731.

The Office of Personnel Management (OPM) has issued a final rule replacing the Merit Systems Protection Board (MSPB) as the forum for appeals of suitability actions taken under 5 CFR part 731 and creating a new OPM-administered appeals process. The rule, effective September 2, 2026, applies to applicants, appointees, and employees in the competitive service and career Senior Executive Service who challenge suitability actions resulting from unfavorable suitability determinations. OPM said the changes are intended to streamline appeals while adding procedural safeguards addressing concerns raised during the rulemaking process.

Appeals transferred from MSPB to OPM. Under the final rule, individuals subject to a suitability action will no longer appeal to the MSPB. Instead, appeals will be filed with OPM, which will serve as the adjudicative body for disputes involving suitability actions under Part 731. The rule does not apply to appeals filed with the MSPB before the effective date.

OPM said the change aligns Part 731 procedures with 5 U.S.C. 7512(f) and amendments enacted through the Fiscal Year 2016 National Defense Authorization Act. The agency stated that suitability actions are distinct from Chapter 75 adverse actions and that MSPB review of suitability actions previously existed through OPM regulation rather than statute.

Added safeguards. OPM received 343 comments on the proposal from individuals and labor organizations. In response, the agency retained the transfer of appeals from MSPB to OPM but revised the rule to add multiple procedural protections.

Among the changes, the final rule expressly allocates burdens of proof. Appellants must establish timeliness, jurisdiction, and claims of improper procedure by a preponderance of the evidence, while the responsible agency must prove the charges supporting the unfavorable suitability determination and the substantive propriety of the suitability action by the same standard.

The rule also includes separation-of-functions requirements, restrictions on ex parte communications, conflict-of-interest standards for adjudicators, and administrative law judge adjudication for appeals involving OPM applicants, appointees, or employees.

Record production and hearing requirements. The final rule requires responsible agencies to produce a complete, indexed, paginated, and certified record of the action under review. The record must include materials considered during the investigation and decision-making process, charge-by-charge analysis, suitability-factor analysis, mitigating and exculpatory evidence, and the rationale for the action taken.

OPM also revised disclosure requirements governing withheld or redacted materials and generally barred reliance on undisclosed information unless the appellant receives notice of its substance and a meaningful opportunity to respond.

Though written-record review remains the default, hearings will be required when the written record is insufficient to resolve a material factual dispute, including disputes involving witness credibility. Those hearings must be presided over by an administrative judge.

Other statutory forums. OPM said the new appeal process will be the exclusive means of appealing a Part 731 suitability action. However, the agency revised the rule to make clear that it does not displace matters within the independent jurisdiction of other entities, including the Equal Employment Opportunity Commission, Federal Labor Relations Authority, Office of Special Counsel, MSPB, Department of Labor's Veterans’ Employment and Training Service, and Inspectors General.

The agency stated that discrimination claims, whistleblower matters, labor-relations disputes, and veterans’ rights claims remain subject to the procedures and remedies assigned to those forums.

Final OPM decisions not subject to judicial review. The rule provides that there is no further right of appeal from a final OPM decision issued under the new suitability-appeal process. OPM said that Congress did not create a statutory right to judicial review of OPM decisions resolving regulatory suitability appeals under Part 731 and that prior Federal Circuit review flowed from MSPB’s role under the former regulatory framework.

At the same time, OPM emphasized that the rule preserves access to independent statutory remedies available through other forums.

Transparency, remedies, filing procedures. The final rule requires OPM to make publicly available final merits decisions or de-identified summaries of those decisions, consistent with the Freedom of Information Act, the Privacy Act, and other applicable laws. Public summaries will identify the procedural posture, disposition, remedy, and sustained or unsustained suitability factors without disclosing protected information.

Available remedies include correction, cancellation or modification of a suitability action, correction of records, prospective eligibility-related relief, and, where authorized by law, back pay, interest, and attorney fees. The rule does not provide compensatory damages unless authorized elsewhere by law.

Appeals generally must be filed electronically within 30 calendar days of the effective date of the suitability action, subject to good-cause exceptions approved by OPM.

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