5 C.F.R. § 731.202

Criteria for making suitability and fitness determinations

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Link to an amendment published at 91 FR 39380, June 30, 2026.

(a) General. OPM, or an agency to which OPM has delegated suitability authority, must base its suitability determination on the presence or absence of one or more of the specific factors in paragraph (b) of this section. An agency is responsible for making a fitness determination for an excepted service position covered by this part but must apply the specific factors in paragraph (b) as the minimum standards for making the determination. When applying these criteria, an agency must also apply guidance in supplemental issuances, as described in § 731.102(b). If using these factors to also make a Personal Identity Verification (PIV) Credential determination as outlined in OPM issuances regarding PIV credentialing eligibility, an agency must also ensure they have verified the individual's identity.

(b) Specific factors. Only OPM may take a suitability action considering the factors in paragraph (b)(3) or (7) of this section. Agencies may use the factor in paragraph (b)(8) of this section in applicant and appointee suitability cases but not employee cases; however, OPM may use this factor in employee cases. When making a suitability determination, OPM or an agency will consider only the following factors to determine if one is suitable. When making fitness determinations, an agency must consider these factors as a minimum standard, but it may prescribe additional factors to protect the integrity and promote the efficiency of the service, when job-related and consistent with business necessity.

(1) Misconduct or negligence in employment;

(2) Criminal conduct;

(3) Material, intentional false statement, or deception or fraud, in examination or appointment;

(4) Dishonest conduct;

(5) Excessive alcohol use, without evidence of rehabilitation, of a nature and duration that suggests the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant, appointee, or others;

(6) Illegal use of narcotics, drugs, or other controlled substances, without evidence of rehabilitation;

(7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force;

(8) Any statutory or regulatory bar that prevents the lawful employment of the individual in the position in question; and

(9) Violent conduct.

(c) Additional considerations. OPM and an agency must consider any of the following additional considerations to the extent OPM or the relevant agency, in its sole discretion, deems any of them pertinent to the individual case:

(1) The nature of the position for which the individual is applying or in which the individual is employed;

(2) The nature and seriousness of the conduct;

(3) The circumstances surrounding the conduct;

(4) The recency of the conduct;

(5) The age of the individual involved at the time of the conduct;

(6) Contributing societal conditions; and

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

Notes of Decisions

Cited in 102 cases (24 in the last 5 years), 1977–2025 · leading case: Ricci v. MSPB, 953 F.3d 753 (Fed. Cir. 2020).

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Ricci v. MSPB, 953 F.3d 753 (Fed. Cir. 2020). · cites it 4× “The administrative judge explained that the board generally lacks jurisdiction over an individual’s non-selection for a specific position, even if that non-selection is based upon the suitability criteria set out in 5 C.F.R. § 731.202 . A. 31. In response, Ricci asserted that…”

Fidelis Odoh v. Off. of Pers. Mgmt., 2022 MSPB 5 (MSPB 2022). · cites it 2× “ANALYSIS ¶6 To prevail in a negative suitability determination appeal, OPM must demonstrate by preponderant evidence that the appellant’s conduct or character 3 may have an impact on the integrity or efficiency of the service, based on one of the specific factors listed in 5…”

Judy Lavonne Crewe v. United States Off. of Pers. Mgmt., Naci Ctr. for Pers. Investigations, Boyers, Pa., 834 F.2d 140 (8th Cir. 1988). · cites it 3× “5 C.F.R. § 731.202 (b) (1987). The *143 0PM found three factors to be determinative of Crewe’s application: (1) delinquency in prior employment, § 731.”

Jean Dehainaut v. Federico Pena, 32 F.3d 1066 (7th Cir. 1994). · cites it 2× “Among the many reasons for disqualification listed in 5 C.F.R. § 731.202 (b) was “[a]ny statutory disqualification which makes the individual unfit for the service” — such as that provided by 5 U.”

James Abrams v. United States Dep't of the Navy, 714 F.2d 1219 (3rd Cir. 1983). · cites it 4× “” 9 Finally, 5 C.F.R. § 731.202 directs the Office of Personnel Management to consider “(a) .”

Jeffrey C. Folio v. Dep't of Homeland Sec., 402 F.3d 1350 (Fed. Cir. 2005). · cites it 2× “In reviewing Folio’s appeal, the Administrative Judge (“AJ”) to whom the case was assigned looked to 5 C.F.R. § 731.202 (b). That regulation enumerates specific factors, including criminal or dishonest conduct, to be considered in an agency’s suitability determination.”

Bennett, Patsy F. v. Chertoff, Michael, 425 F.3d 999 (D.C. Cir. 2005). “She contends that she was terminated based on a negative suitability determination, maintaining that a “[m]aterial, intentional false statement or deception or fraud in examination or appointment” is a basis for determining that an individual is unsuitable for federal…”

Jane Doe v. Robert E. Hampton, Individually & as Chairman, U. S. Civil Serv. Comm'n, 566 F.2d 265 (D.C. Cir. 1977). “,” though he could not determine specifically how long. Tr. 42-43. While Dr. Valle also testified that the term did not mean that the patient would suffer from it forever, id.”

McDowell v. Goldschmidt, 498 F. Supp. 598 (D. Conn. 1980). · cites it 5× “5 C.F.R. § 731.202 (a). Certain “specific factors” are listed in 5 C.”

Dimas Bonet v. United States Postal Serv., 661 F.2d 1071 (5th Cir. 1981). · cites it 2× “5 C.F.R. § 731.202 (a). See note 5, supra.”

Crawford v. United States Dep't of Homeland Sec., 245 F. App'x 369 (5th Cir. 2007). “Pursuant to 5 C.F.R. § 731.202 (b), the government is to consider “[mjisconduct or negligence in employment” and “[cjriminal or dishonest conduct” as factors when making suitability determinations.”

Maurice M. Larry v. Ray E. Lawler, Leland L. Walton, Jayne B. Spain, Lt. Andolsek, Robert E. Hampton, 605 F.2d 954 (7th Cir. 1978). “” 5 C.F.R. § 731.202 lists numerous “specific factors” that may be used in the determination of eligibility.”

Show all 102 citing cases →

— 5 C.F.R. § 731.202(a)(2) — 2 cases

Jean Dehainaut v. Federico Pena, 32 F.3d 1066 (7th Cir. 1994). “Among the many reasons for disqualification listed in 5 C.F.R. § 731.202 (b) was “[a]ny statutory disqualification which makes the individual unfit for the service” — such as that provided by 5 U.”

Joseph C. Wagner, Jr., & Jeffery L. Atchley v. Off. of Pers. Mgmt., 783 F.2d 1042 (Fed. Cir. 1986).

— 5 C.F.R. § 731.202(b) — 1 case

Drevaleva v. United States of Am. (N.D. Cal. 2019).

— 5 C.F.R. § 731.202(b)(3) — 1 case

Salmon Pineiro v. Lehman, 653 F. Supp. 483 (D.P.R. 1987).

— 5 C.F.R. § 731.202(b)(5) — 2 cases

Am. Fed'n of Gov't Employees v. United States R.R. Ret. Bd., 742 F. Supp. 450 (N.D. Ill. 1990).

Am. Fed. of Gov. Emp. v. Rr Ret. Bd., 742 F. Supp. 450 (N.D. Ill. 1990).

— 5 C.F.R. § 731.202(c) — 2 cases

Pension Benefit Guar. Corp. v. Fed. Labor Relations Auth., Nat'l Treasury Employees Union, Intervenor, 967 F.2d 658 (D.C. Cir. 1992).

Drevaleva v. United States of Am. (N.D. Cal. 2019).

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