5 C.F.R. § 731.103

Delegation to agencies for the competitive service and career Senior Executive Service

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) Subject to the limitations and requirements of paragraphs (c), (e), and (g) of this section, OPM delegates to the head of an agency authority for making a suitability determination and taking a suitability action (including limited, agency-specific debarments under § 731.205) in a case involving an applicant or appointee. In a case involving an appointee where the individual has converted to an employee in a prior competitive service or career Senior Executive Service appointment, agency heads must consider the individual to be an employee.

(b) In a case involving an employee, the head of the employee's employing agency, or designee, may, in its sole and exclusive discretion, make a proper and sufficient referral to OPM, as specified in OPM issuances as described in § 731.102(b), if the employee's conduct appears to warrant an unfavorable suitability determination.

(c) When an agency, acting under delegated authority from OPM, determines that a governmentwide debarment by OPM under § 731.204(a) may be an appropriate action, whether on an applicant, appointee, or employee, it must refer the case to OPM for debarment consideration. An agency must make a referral, but only after sufficient resolution of the suitability issue(s) to determine if a governmentwide debarment appears warranted.

(d) An agency exercising authority under this part by delegation from OPM must adhere to OPM requirements as stated in this part and issuances described in § 731.102(b). An Agency must also implement policies and maintain records demonstrating that they employ reasonable methods to ensure adherence to these issuances.

(e) OPM reserves the right to undertake a determination of suitability based upon evidence of falsification or fraud relating to an examination or appointment at any point when information giving rise to such a charge is discovered. OPM must be informed in all cases where there is evidence of material, intentional false statements, or deception or fraud, in examination or appointment, and OPM will take a suitability action where warranted.

(f) OPM may revoke an agency's delegation to make suitability determinations and take suitability actions under this part if an agency fails to conform to this part or OPM issuances as described in § 731.102(b).

(g) OPM retains sole jurisdiction to make a final suitability determination and take an action under this part in any case where there is evidence that there has been a material, intentional false statement, or deception or fraud, in examination or appointment. OPM also retains sole jurisdiction to make a final suitability determination and take an action under this part in any case when there is evidence that there has been knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force. An agency must refer these cases to OPM for suitability determinations and suitability actions under this authority. OPM also retains sole jurisdiction to take a suitability action under this part in any case involving an employee for post-appointment conduct. Although no prior approval is needed, notification to OPM is required if the agency wants to take, or has taken, action under its own authority (such as 5 CFR part 359 or 752) in cases involving conduct fitting within any of these factors or involving an employee for post-appointment conduct. In addition, except as limited by § 731.105(d), OPM may, in its discretion, exercise its jurisdiction under this part in any case it deems necessary regardless of whether the agency may adjudicate under another authority.

[89 FR 102691, Dec. 18, 2024, as amended at 91 FR 39379, June 30, 2026]

Notes of Decisions

Cited in 11 cases (2 in the last 5 years), 2002–2023 · leading case: Nat'l Treasury Employees Union v. Fed. Labor Relations Auth., 754 F.3d 1031 (D.C. Cir. 2014).

Sort: Relevance Newest Treatment

Nat'l Treasury Employees Union v. Fed. Labor Relations Auth., 754 F.3d 1031 (D.C. Cir. 2014). · cites it 5× “See 5 C.F.R. § 731.103 (g). 2 Until 2008, the IRS used its own investigators to investigate and interview both covered and excepted personnel.”

Nelson v. Nat'l Aeronautics & Space Admin., 568 F.3d 1028 (9th Cir. 2009). · cites it 2× “Because Caltech established a policy that JPL employees who fail to obtain new identification badges will be terminated, a negative suitability determination results in the loss of employment with attendant harm to the employee's career.”

Coleman v. Dhs (D.D.C. 2021). · cites it 3× “’s Opp’n at 10, 12, including a duty to ensure the accuracy, relevance, timeliness and completion of the records on which it relies, 5 C.F.R. § 731.103 (e)(1), and to “consider all available information in reaching its final decision on a suitability determination,” 5 C.”

Bradley Ellerman v. Dep't of the Army (MSPB 2023). · cites it 3× “1300 or 5 C.F.R. § 731.103 (d)(1). Except as so modified to supplement the administrative judge’s analysis, we AFFIRM the initial decision.”

Bean v. Dep't of the Air Force, 33 F. App'x 517 (Fed. Cir. 2002). · cites it 2× “In response, Bean submitted a declaration and an amended appeal, arguing that the agency had made a suitability determination in finding her unfit for her position, which was an appealable action under 5 C.F.R. § 731.103 (d). Id. The Board, however, concluded that it only had…”

Mr. Charles v. Neighoff v. Dep't of Homeland Sec. (MSPB 2016). “See 5 C.F.R. § 731.103 (g) (“Nothing in this part precludes an agency from taking an adverse action against an employee under the procedures and standards of part 752 of this chapter or terminating a probationary employee under the procedures of part 315 or part 359 of this…”

Lisa J. Wilson v. Dep't of Just. (MSPB 2016). “The decision did, however, briefly address the appellant’s suitability claim as follows: The appellant checked the box on her appeal form that she was appealing a negative suitability action, however, the appellant 4 has not provided any evidence that a suitability action was…”

Holland v. MSPB (Fed. Cir. 2020). “” 5 C.F.R. § 731.103 (g). And “[a]gencies must refer these cases to OPM for suitability determinations and suitability ac- tions under this authority” or notify OPM “if the agency wants to take, or has taken, action under its own author- ity.”

Iyer v. Dep't of the Treasury, 263 F. App'x 901 (Fed. Cir. 2008). “” 5 C.F.R. § 731.103 (a). Therefore, Mr. Iyer has also failed to establish the Board’s jurisdiction under a constructive suitability theory.”

Sterling Edward Guy, Jr. v. Off. of Pers. Mgmt. (MSPB 2015). “3 We acknowledge that, pursuant to 5 C.F.R. §§ 731.103 and 731.203, an agency may remove an appointee or employee for suitability reasons under 5 C.”

Nelson v. Nasa (9th Cir. 2009). “See 5 C.F.R. § 731.103 (a) (“[The U.S. Office of Personnel Management] delegates to the heads of agencies 9 HSPD-12 was issued in response to identity fraud concerns raised by the 9/11 Commission.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.