OPM replaces the MSPB for suitability appeals too

The Office of Personnel Management published a final rule on 3 August 2026 moving appeals of suitability actions from the Merit Systems Protection Board to itself.¹² OPM “will replace the Merit Systems Protection Board (MSPB) as the adjudicative agency for such appeals,” effective 2 September 2026, though the rule “does not apply to appeals filed with the MSPB before the effective date.”¹ It was one of four OPM rules published that day and completes the pair begun by the suitability rule of 30 June (see Suitability actions now reach employees, not just applicants): one rule extended suitability to sitting employees, this one decides who hears the challenge.¹³ OPM “received 343 comments during the 30-day public comment period from multiple individuals and multiple labor organizations.”¹⁴

1. Judicial review ends, by reclassification rather than repeal. Section 731.501(e) states that “[a] party cannot obtain judicial review of a decision under this subpart,” and OPM confirms in the preamble that “there is no further right of appeal from a final OPM decision.”¹ Its answer to commenters who objected is that nothing was taken away: “[t]he final rule does not withdraw a statutory right to judicial review. Rather, it reflects that Congress has not provided a statutory right to judicial review of an OPM decision adjudicating a regulatory suitability appeal under part 731.”¹ The mechanism is in the next sentences — 5 U.S.C. 7703 “authorizes judicial review of final orders or decisions of the MSPB,” but “a final decision issued under this subpart is an OPM decision, not an MSPB order or decision.”¹⁵ Review was available because the MSPB decided these cases; the rule changes who decides, and the review follows the forum out.

2. OPM’s authority argument is that the Board’s role here was its own gift to give. OPM writes that “MSPB is not a tribunal of plenary jurisdiction. It may hear and decide only those matters placed within its jurisdiction by statute, rule, or regulation,” citing 5 U.S.C. 1204(a)(1) and 7701(a) and Forest v. MSPB, 47 F.3d 409 (Fed. Cir. 1995).¹⁶ Because subpart E of part 731 is an OPM regulation, OPM’s position is that it may revise the forum it created. It separates “three distinct questions” — the substantive authority to take suitability actions, whether chapter 75 procedures apply, and “which administrative forum will review suitability actions under part 731” — and says the rule “addresses only the third.”¹ Commenters disputed the premise: one “argued that the rule violates 5 U.S.C. 1204(a)(1), which requires MSPB to handle and decide cases within its jurisdiction,” another “argued that OPM’s reliance on 5 U.S.C. 7512(F) stretches that provision because, in the commenter’s view, it applies only to pre-appointment matters.”¹ Others noted that suitability actions “may result in removal, cancellation of eligibility, cancellation of reinstatement eligibility, or debarment, and therefore warrant review by a structurally independent tribunal.”¹

3. The procedure it substitutes is more protective than its companion rule of the same day. The appellant carries timeliness, jurisdiction, and any procedural claim, but once those are established “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.”¹ That is the opposite allocation from the probationary appeals rule published the same day, where the employee carries everything (see OPM takes probationary appeals from the MSPB too).¹⁷ The burden is where the two rules part company. Their adjudication machinery is otherwise the same: in both, adjudicators “shall be insulated from officials who participated personally and substantially in the challenged personnel action,” may not be assigned where there is a prior relationship or involvement, and may not consider material ex parte communications on the merits; in both, where the appellant is an OPM employee, “OPM will assign an administrative law judge” and OPM binds itself not to disturb the result absent “harmful procedural irregularity,” “clear error of law,” or “a material factual error that affected the outcome.”¹⁷

4. The last word stays with the Director, and no one can ask for it. Under § 731.508 the Director “may, on the Director’s own initiative and before a decision becomes final,” reopen and reconsider “any initial decision or reopened and reconsidered decision” — and the section closes: “This section does not create a right to request Director review.”¹ Decisions otherwise become final thirty days after issuance.¹ The exclusivity clause preserves parallel routes that do not run through part 731: the subpart is “the sole means of appealing a suitability action under this part,” but does not preclude a complaint 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.”¹