(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
Gossage v. Off. of Pers. Mgmt. (W.D. Wash. 2025).
“§ 7701 (a); 5 C.F.R. § 731.501 (a). 17 A person who alleges that a federal agency violated USERRA or VEOA may also appeal to the 18 MSPB.”
David Toro v. Dep't of Just. (MSPB 2024).
· cites it 2× “ANALYSIS Under 5 C.F.R. § 731.501 (a), when an agency takes a suitability action against a person, that person may appeal the action to the Board.”
Charisse Willis v. Off. of Pers. Mgmt. (MSPB 2024).
· cites it 2× “Instead, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501 , which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination.”
Dytaun Montgomery v. Dep't of Vets. Affairs (MSPB 2024).
“236 , ¶ 8; 5 C.F.R. § 731.501 (a). A “suitability action” is defined as a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, and/or a debarment.”
Francisco Prince v. Off. of Pers. Mgmt. (MSPB 2024).
“Instead, the Board’s jurisdiction over a negative suitability determination is limited to that provided under 5 C.F.R. § 731.501 , which does not extend to reviewing or modifying the ultimate action taken as a result of a suitability determination.”
Duane Grapperhaus v. Dep't of Labor (MSPB 2024).
“The Board has jurisdiction over suitability actions, 5 C.F.R. § 731.501 , but a “suitability action” is defined as a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, and a debarment.”
Thomas Smith v. Dep't of Com. (MSPB 2024).
“Moreover, as explained in the initial decision, only “suitability actions” may be appealed to the Board under 5 C.F.R. § 731.501 (a). ID at 3-4. Cancellation of eligibility or a nonselection for a specific position is not a “suitability action” even if it is based on the…”
Danny Lee v. Soc. Sec. Admin. (MSPB 2024).
“2 5 C.F.R. § 731.501 (a). Suitability determinations examine whether “a person’s character or conduct .”
Mark Riccio v. Dep't of the Army (MSPB 2024).
“104 (a) (providing Board jurisdiction over employment practice claims); 5 C.F.R. § 731.501 (a) (providing Board jurisdiction over negative suitability determinations).”
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