5 C.F.R. § 731.404

Decision

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(a) The agency head, or designee, makes the final decision as to whether to take a suitability action. In cases where the agency head delegates decision-making authority to subordinate employees, there must be appropriate independence between the employee authorized to propose the suitability action and the employee authorized to make the final decision regarding such suitability action. The official authorized to make the final decision may not consult with, receive advice from, or communicate with the employee who proposed the suitability action concerning the merits of the proposed action, except on notice to the respondent and as part of the record. The official authorized to make the final decision is also prohibited from ex parte communications consistent with the requirements of 5 U.S.C. 557(d).

(b) The decision regarding the final action must be in writing, be dated, and inform the respondent of the reasons for the decision and that an unfavorable decision may be appealed in accordance with subpart E of this part. If the decision requires removal, the employing agency must remove the appointee from the rolls within 5 workdays of the agency's decision.

[91 FR 39381, June 30, 2026]

Notes of Decisions

Cited in 1 case, 2014–2014 · leading case: Sczygelski v. Merit Sys. Prot. Bd., 558 F. App'x 993 (Fed. Cir. 2014).

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Sczygelski v. Merit Sys. Prot. Bd., 558 F. App'x 993 (Fed. Cir. 2014). “In particular, he argues that, when an agency makes a suitability determination about someone, it is required by 5 C.F.R. § 731.404 to inform the employee of his or her right to appeal, which CBP failed to do so in his case.”

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