(a) Right of appeal. An applicant, appointee, or employee in the competitive service or career Senior Executive Service, as those terms are used in this part, may appeal to OPM a suitability action taken against the appellant because of an unfavorable suitability determination.
(b) Burden of proof. (1) The appellant bears the burden to demonstrate, by a preponderance of the evidence:
(i) The timeliness of the written appeal;
(ii) That OPM possesses jurisdiction over the appeal; and
(iii) If the appellant challenges the suitability action based on improper procedure under paragraph (c)(2) of this section, that the responsible agency failed to provide one or more of the procedural protections identified in paragraph (c)(2) of this section.
(2) If the appellant contests the unfavorable suitability determination under paragraph (c)(1) of this section, and after the appellant establishes timeliness and jurisdiction, the responsible agency bears the burden to establish, by a preponderance of the evidence, the charge or charges supporting the unfavorable suitability determination and the substantive propriety of the suitability action taken. This paragraph does not shift to the responsible agency the appellant's burden under paragraph (b)(1)(iii) of this section to demonstrate improper procedure.
(c) Appealable issues—(1) Unfavorable suitability determination. The appellant may contest the determination that he or she is unsuitable for Federal employment based on the specific factors found at § 731.202(b) provided that the unfavorable suitability determination resulted in a suitability action as defined at § 731.101(a).
(2) Improper procedure. An appellant who has been subject to a suitability action may challenge whether the responsible agency failed to provide:
(i) Advance written notice stating the charge(s) and specific reason(s) for the proposed action and notifying the appellant of the right to answer the notice in writing and to review, upon request, the materials relied upon;
(ii) Notice of the right to be represented by a representative chosen by the appellant;
(iii) A minimum of 30 calendar days from the date of the notice of proposed action to file a written response and furnish documentation; or
(iv) A written decision delivered to the appellant that explains the decision and the procedures for appealing the decision.
(d) Nonappealable issues. An applicant, appointee, or employee may not appeal an unfavorable suitability determination that does not result in a suitability action as those actions are defined at § 731.101(a).
(e) Exclusive appeal procedure. The procedures in this subpart are the sole means of appealing a suitability action under this part, but do not otherwise preclude an applicant, appointee, or employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, Federal Labor Relations Authority, an Inspector General, Merit Systems Protection Board, the Department of Labor's Veterans' Employment and Training Service, or the Office of Special Counsel. A party cannot obtain judicial review of a decision under this subpart.
Notes of Decisions
Fidelis Odoh v. Off. of Pers. Mgmt., 2022 MSPB 5 (MSPB 2022).
· cites it 4× “341 , ¶ 5; 5 C.F.R. § 731.501 (b)(2). ¶8 The single charge that the administrative judge sustained was based upon an allegation that the appellant provided false information when he twice answered “no” in response to the question of whether he had been fired during the past 5…”
Jeffrey C. Folio v. Dep't of Homeland Sec., 402 F.3d 1350 (Fed. Cir. 2005).
· cites it 4× “The AJ stopped short of reviewing the connection between Folio’s alleged misconduct and his suitability to be an Immigration Inspector because she interpreted the Office of Personnel Management’s (“OPM’s”) recently-revised regulation, 5 C.F.R. § 731.501 , as precluding the Board…”
Ricci v. MSPB, 953 F.3d 753 (Fed. Cir. 2020).
“She contends, however, that the board had jurisdiction over her appeal pursuant to 5 C.F.R. § 731.501 (a), an Office of Personnel Management (“OPM”) 2 There are certain limited exceptions to the general rule that an applicant’s non-selection for a vacant position is not…”
Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015).
· cites it 4× “OPM maintains that: (1) Hopper’s appeal should have been adjudicated as a suitability action under 5 C.F.R. § 731.501 , rather than as an adverse action appeal under chapter 75; and (2) the Board erred in considering and applying mitigating factors to Hopper’s suitability appeal.”
Vincent Curtis Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380 (Fed. Cir. 2004).
“Conyers contends that the Board had ju *1382 risdiction over his appeal because he was challenging his non-selection by TSA under 5 C.F.R. § 731.501 (2002) (relating to unsuitability determinations), id.”
Archuleta v. Hopper, 773 F.3d 1289 (Fed. Cir. 2014).
· cites it 4× “OPM maintains that: (1) Hopper’s appeal should have been adjudicated' ás a suitability action under 5 C.F.R. § 731.501 , rather than as an adverse action appeal under chapter 75; and (2) the Board erred in considering and applying mitigating factors to Hopper’s suitability…”
Bennett, Patsy F. v. Chertoff, Michael, 425 F.3d 999 (D.C. Cir. 2005).
“As Bennett points out, the two determinations are subject to different processes of review: whereas suitability determinations are subject to appeals to the Merit Systems Protection Board and subsequent judicial review, see 5 C.F.R. § 731.501 (a), security clearance denials are…”
Foote v. Chu, 928 F. Supp. 2d 96 (D.D.C. 2013).
“” 5 C.F.R. § 731.501 (a). The HRP regulations are set forth in Part 712 of Title 10 of the Code of Federal Regulations, as part of the regulations relating to the Department of Energy.”
Burroughs v. Merit Sys. Prot. Bd., 73 F. App'x 415 (Fed. Cir. 2003).
“See 5 C.F.R. § 731.501 . Adverse suitability determinations are based on factors related to performance and behavior, e.”
Beyers v. Dep't of State, 505 F. App'x 951 (Fed. Cir. 2013).
· cites it 2× “See 5 C.F.R. § 731.501 (a). This decision on the suitability appeal became final on May 30, 2011.”
Gregory v. Merit Sys. Prot. Bd., 469 F. App'x 891 (Fed. Cir. 2012).
“Gregory maintains that his non-selection for employment at the GSA amounted to a suitability action, which would provide a right of appeal before the Board pursuant to 5 C.F.R. § 731.501 (a). His position is based primarily on the GSA’s statement that he no longer met “the…”
Alvarez v. Dep't of Treasury, 298 F. App'x 965 (Fed. Cir. 2008).
“Because an employee in the competitive service who is terminated as a result of being found unsuitable for employment in a suitability determination may appeal that determination to the Board, see 5 C.F.R. § 731.501 (2007), Ms. Alvarez contends that the Board had jurisdiction…”
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