(a) Appeal to the Merit Systems Protection Board. When OPM or an agency acting under delegated authority under this part takes a suitability action against a person, that person may appeal the action to the Merit Systems Protection Board (hereinafter “Board”).
(b) Decisions by the Merit Systems Protection Board. (1) If the Board finds that one or more of the charges brought by OPM or an agency against the person is supported by a preponderance of the evidence, regardless of whether all specifications are sustained, it must affirm the suitability determination. The Board must consider the record as a whole and make a finding on each charge and specification in making its decision.
(2) If the Board sustains fewer than all the charges, the Board must remand the case to OPM or the agency to determine whether the suitability action taken is appropriate based on the sustained charge(s). However, the agency must hold in abeyance a decision on remand until the person has exhausted all rights to seek review of the Board's decision, including court review.
(3) Once review is final, OPM or an agency will determine whether the action taken is appropriate based on the sustained charges and this determination will be final without any further appeal to the Board.
(c) Appeal procedures. The procedures for filing an appeal with the Board are found at part 1201 of this title.
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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