Suitability Action Appeals

The Office of Personnel Management (OPM) issued this Notice of Proposed Rulemaking (NPRM) regarding federal employees' ability to appeal determinations that they are not "suitable" to remain federal employees. Generally speaking, a "suitability" determination is a determination made by OPM or the employing agency regarding whether the employee has the character necessary to work as a federal civil servant. Historically, suitability determinations were only made based on pre-employment conduct, but a recent Presidential Memorandum gave OPM the authority to consider on-the-job conduct in making these determinations, and it gave OPM authority to make these determinations for agency employees. This new proposed regulation would not change the substance of a suitability determination, but it would change how an employee could appeal an adverse determination. Historically, employees could appeal these determinations to the Merit Systems Protection Board, which was a neutral adjudicative body. This proposed regulation would take away that external appeal right, and would funnel all appeals to OPM — i.e., the agency that made the suitability determination in the first place.