The Office of Personnel Management (OPM) has published a proposed rule in the Federal Register that would significantly reshape how federal employees and applicants challenge suitability actions—decisions that determine whether an individual is appropriate for federal employment based on conduct or character concerns. The proposal would remove the Merit Systems Protection Board (MSPB) from the suitability appeals process and replace it with a new, internal OPM appeals system.
The proposal comes as OPM has been rolling out several significant regulatory changes affecting federal employees. Earlier this week, the agency issued a separate proposed rule to overhaul reduction‑in‑force (RIF) appeals along with a final rule instituting the Schedule Policy/Career classification. Now, OPM is proposing another major change—this time to the process for appealing suitability actions.
What Are Suitability Standards?
Suitability standards govern whether an individual’s character or conduct is compatible with federal service. These standards are distinct from job qualifications—they focus on trustworthiness, integrity, and conduct that may affect the efficiency or integrity of the service.
In the proposed rule, OPM notes, “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.”
Under 5 CFR part 731, suitability determinations consider issues such as:
- Criminal or dishonest conduct
- Misrepresentation or fraud in the hiring process
- Alcohol or drug abuse affecting job performance
- Patterns of rule violations
- Conduct that raises security or insider‑threat concerns
When an individual is found unsuitable, agencies may take a suitability action, which can include:
- Removal
- Cancellation of eligibility
- Debarment from federal employment for a period of time
- Cancellation of reinstatement eligibility
These actions are separate from adverse actions under Chapter 75 and have their own regulatory framework.
Why OPM Says the Appeals Process Must Change
OPM argues that the current system—where suitability actions can be appealed to the MSPB—is slow, duplicative, and inconsistent with congressional intent. It cites several problems in particular:
1. Congressional intent favors a separate suitability process
Congress clarified in the FY 2015 National Defense Authorization Act that suitability actions are not Chapter 75 adverse actions and therefore are not required to go through MSPB. OPM’s regulations, however, still allow MSPB appeals, which has kept MSPB involved despite the statutory change.
2. MSPB delays and backlogs
OPM highlights that MSPB’s historical lack of quorum—most recently from 2017 to 2022 and again for much of 2025—left suitability cases unresolved for years. OPM had 14 suitability appeals that waited over five years for a final MSPB decision.
3. Complexity and cost
MSPB appeals involve discovery, hearings, multiple appeal levels, and litigation‑style procedures. OPM argues this discourages agencies from taking suitability actions even when warranted.
4. High settlement rates
From FY 2018–2024, 71% of suitability appeals that were not dismissed ended in settlement—often reducing penalties such as debarment periods. OPM believes this undermines risk‑management goals.
What the Proposed Rule Would Do
OPM proposes to eliminate MSPB jurisdiction over suitability actions and replace it with a new OPM‑run appeals process under a revised Subpart E of 5 CFR part 731. Key elements include:
1. Appeals go to OPM—not MSPB
Applicants, appointees, and competitive‑service or career SES employees who receive a suitability action could appeal directly to OPM.
2. A new OPM appeals unit
OPM would maintain strict separation between:
- Staff who make suitability determinations
- Staff who adjudicate appeals
This is intended to preserve independence and avoid conflicts of interest.
3. Review based on the written record
OPM would review:
- The agency’s decision
- The case file
- The appellant’s written submission
If material facts are in dispute, OPM could:
- Hold a hearing to assess witness credibility
- Conduct additional investigation
- Reverse or modify the agency’s decision
4. Finality of OPM decisions
OPM’s decision would be final within the administrative process, and there would be no further appeal to MSPB.
5. Timeliness requirements
Appeals must be filed within 30 days using OPM’s forthcoming e‑filing system. Late filings would be accepted only for “good cause,” using standards drawn from MSPB case law.
6. Scope of review
OPM would review only:
- Whether the individual is unsuitable under 5 CFR 731.202(b)
- Whether the agency followed proper procedures
Claims of discrimination or prohibited personnel practices could be raised only as context, not as legal claims. Individuals would still need to pursue those separately through EEOC or OSC.
How Suitability Standards Tie Into the Proposal
Suitability standards are the substantive criteria used to determine whether someone should be removed, debarred, or otherwise restricted from federal employment. The proposed rule does not change those standards.
Instead, it proposes changing how disputes about those standards are adjudicated.
Implications for Federal Employees and Applicants
Potentially Faster Decisions
OPM asserts that removing MSPB from the process will reduce delays and backlogs. Because OPM handles only suitability matters, appeals may move more quickly than MSPB’s general docket.
More Consistent Outcomes
OPM believes centralizing appeals will produce more uniform decisions, since suitability is a specialized area with unique standards.
Agencies May Pursue More Suitability Actions
OPM suggests that the current MSPB process discourages agencies from taking suitability actions due to cost, complexity, and high settlement rates. A streamlined process may lead agencies to use suitability actions more frequently.
No Change to Discrimination or Whistleblower Rights
Employees can still pursue:
- EEO complaints
- OSC prohibited‑personnel‑practice complaints
- Federal court review where applicable
But those processes will run parallel to OPM’s suitability appeal—not through MSPB.
Finality May Increase the Stakes
The rule states that OPM’s decision is final within the administrative process, so federal employees may have fewer avenues to challenge an unfavorable suitability determination.
Conclusion and Next Steps
OPM’s proposed rule represents a major shift in how the federal government handles challenges to suitability actions. By removing MSPB from the process and creating a new OPM‑run appeals system, the agency intends to expedite decisions and align the process with congressional intent and modern risk‑management practices.
OPM is seeking public comments on the proposed rule through regulations.gov until March 9, 2026.
