Three of the four rules OPM published on August 3, 2026, take something away from federal employees, and the fourth, on OPM suitability appeals, is the one that hands something back. It is worth naming precisely, because a counsel who has not worked out where the pressure points sit in a scheme will not find them for you three days before your filing deadline.
The rule is the suitability action appeals rule, revising subpart E of 5 CFR part 731, and it takes effect on September 2, 2026 (Suitability Action Appeals, OPM–2025–0173, RIN 3206–AO97, 91 FR 49034). It carries all the architecture of the other three:
- Appeals to OPM rather than the Merit Systems Protection Board
- 30 days to file
- E-filing only
- No judicial review
- No compensatory damages
It also does two things that none of the others do, and both of them will matter to you if you are ever on the receiving end of one of these actions. The agency, not the employee, carries the burden of proof on the merits. And when a material factual dispute turns on witness credibility, a hearing before an administrative judge is mandatory rather than discretionary.
Post four of four in a series on the Office of Personnel Management’s August 3, 2026 final rules and what they do to federal civilian employees, at home and overseas.
What a Suitability Action Actually Is Under 5 CFR 731
Start here, because most people who get hit with one have never heard the word used this way before it turned up on a notice with their name on it.
Suitability is about your character and conduct as they bear on the integrity or efficiency of the service. It is not performance, and it is not ordinary discipline.
It runs on the specific factors listed at 5 CFR 731.202(b), and four actions can follow:
- Cancellation of eligibility
- Removal
- Cancellation of reinstatement eligibility
- Debarment
Each of those is a suitability action as defined at 5 CFR 731.101(a), and each one is what makes an OPM suitability appeal available to you.
The distinction matters because the routes are different. Chapter 75 of title 5 governs ordinary adverse actions. When a suitability action is taken under part 731 instead, the matter leaves chapter 75 – by the text of 5 U.S.C. 7512(F) where the action is taken by OPM – and part 731 supplies the appeal route. OPM said so in the preamble and added a limiting sentence I want counsel to keep: the suitability appeals rule “does not itself convert ordinary misconduct, performance deficiencies, or chapter 75 matters into suitability matters” (91 FR at 49049).
That sentence is a tool, and you should use it – if a command has reached for suitability to avoid the procedural burden of a chapter 75 removal, the mischaracterization of your case is the first thing to attack and the easiest thing to prove.
The Burden of Proof in Suitability Appeals Under 731.501(b)
Section 731.501(b) splits the burden in an OPM suitability appeal, and the split is the heart of this rule (91 FR at 49066).
You Must Prove
- Timeliness – that you filed in time
- Jurisdiction – that OPM has it
- Procedure – that a protection was skipped
Agency Must Prove
- The charges – that they are true
- The propriety – that the penalty fit
- The standard – preponderance, same as yours
What You Must Prove: Timeliness, Jurisdiction, Procedure
The appellant carries the preponderance on three threshold questions: the timeliness of the written appeal, that OPM possesses jurisdiction, and, if he is challenging improper procedure, that the agency failed to provide one or more of the identified protections (id.).
What the Agency Must Prove Under 731.501(b)(2)
Then subsection (b)(2). Once the appellant contests the unfavorable suitability determination itself and has established 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” (id.).
Read the second half of that sentence twice, because the agency must prove the charges and the propriety of the action it chose. Not just that something happened to you, but that removal or debarment was the right answer to it. That is a penalty-proportionality burden placed on the government, in a scheme where the same drafters put every other burden on the employee.
How This Compares to the RIF and Probationary Appeals
Compare the reduction-in-force appeal subpart covered in post one of this series, where the employee must prove the agency’s failure and the prejudice from it, and the probationary appeal in post three, where the employee must prove partisan political or marital-status discrimination. Then look at this one. Same agency, same month, opposite allocation.
I have tried enough cases to know what a burden allocation is worth in a room where the decisionmaker is genuinely uncertain, and it is worth more to you than any three procedural rights printed on the same page.
The Mandatory Hearing in an OPM Suitability Appeal
The Default, and the Trigger in 731.505(d)(4)
Section 731.505(d)(3) sets the default: review “must be based solely on the developed written record unless the written record is insufficiently developed to resolve one or more facts material to the outcome of the appeal, including when resolution of a material factual dispute requires evaluation of witness credibility” (91 FR at 49068).
Then (d)(4), which is the provision worth the price of admission. “In cases where the resolution of a material factual dispute requires evaluation of witness credibility, or where the developed written record is insufficient to resolve one or more facts material to the outcome of the appeal, OPM will assign an administrative judge to preside over a hearing” (id.). The hearing is confined to the material factual issues identified as necessary to resolve the appeal (id.).
“OPM will assign.” Not may, and not in OPM’s sole discretion.
Why Credibility Is the Whole Question Here
The parallel provision in the reduction-in-force subpart, section 351.905(c), makes a hearing available when OPM finds one “necessary and efficient” in its own judgment, and the credibility language sits inside that discretion as one factor among others. Here the same language is a trigger.
For four years I served as a Special Victim Prosecutor, and before and after that I have spent a career in rooms where a case came down to which of two people the finder of fact believed. You do not resolve that on paper, and anybody who tells you otherwise has not sat through it. A suitability charge built on an allegation of dishonesty, a disputed incident, or a security interview you say was mischaracterized is precisely the credibility case that (d)(4) was written for.
How to Draft Your Appeal to Trigger the Hearing
The practical consequence is that your written suitability appeal should be drafted to trigger the hearing rather than to win without one:
- Identify the material fact
- Show two irreconcilable accounts of it in the record
- Say that resolving it requires a credibility determination
- Cite section 731.505(d)(4) by number
Do not bury the dispute inside a narrative and hope that somebody downstream notices it for you.
The Procedural Protections You Can Enforce
Section 731.501(c)(2) lists four protections whose absence is independently appealable (91 FR at 49066).
Protection One: Advance Written Notice
You are owed advance written notice stating the charges and specific reasons for the proposed action, together with notice of your right to answer in writing and to review the materials relied upon on request.
Protection Two: A Representative of Your Choosing
You are owed notice of your right to be represented by a representative of your own choosing.
Protection Three: 30 Days to Respond
You are owed a minimum of 30 calendar days from the date of the notice of proposed action to file a written response and furnish documentation.
Protection Four: A Written Decision
You are owed a written decision, given to you, that explains the decision and the procedures for appealing it.
The 30-day response minimum is the protection commands break most often. A notice giving you seven or 10 days to respond to a suitability charge is not a close question under this rule, and it is a clean, provable, standalone ground of appeal (id.).
Filing, and the Time Zone Problem Again
Section 731.502(b) gives 30 calendar days from the effective date of the suitability action to file your suitability appeal, electronically through the system on OPM’s website, deemed timely when filed by 11:59 p.m. Eastern Time on the 30th day (91 FR at 49066–67). The first counted day is the day after the effective date (id.).
The date the employing agency effectuates the action, whether its own or OPM-directed (id.)
The date on the notice of final action (id.)
10 calendar days are added (id.)
A last day on a Saturday, Sunday, or Federal holiday rolls to the next workday (id.)
Every one of my overseas clients works at least 6 hours ahead of Washington, and in Japan and Korea the gap is 13. An 11:59 p.m. Eastern deadline expires in the middle of the following local afternoon in Tokyo, which sounds like extra time until you try to use it. Do not file on the last day from a location east of Washington.
What the Agency Must Hand Over in a Suitability Appeal
The Agency’s Response Under 731.503(b)(1)
Section 731.503(b)(1) requires the responsible agency to file its response within 30 calendar days of notification of the suitability appeal, to include all documents contained in the agency record of the action, to designate and sign through an authorized representative, and to include anything else OPM requests (91 FR at 49067).
“All documents contained in the agency record” is a phrase you should hold an agency to word for word. A suitability action assembled from a background investigation, an adjudicator’s worksheet, and a security interview summary has a record considerably larger than the four documents the command would prefer to file, and the gap between what gets produced and what actually exists is where your case usually is.
Who Decides Your Suitability Appeal, and Who Cannot
Section 731.505(c) requires every OPM employee or administrative law judge assigned to these appeals to have completed training meeting national training standards for suitability adjudicators (91 FR at 49068).
Section 731.505(a) insulates the adjudicator from officials who participated personally and substantially in the challenged action or gave case-specific advice, bars material ex parte communications on the merits with a summary-and-response cure, and disqualifies anyone with a prior relationship to the appellant, prior involvement in the determination, or any other conflict that would reasonably call impartiality into question (id.).
What You Get If You Win a Suitability Appeal, and What You Do Not
Findings on Each Charge Under 731.505(f)(2)
Section 731.505(f)(2) requires the initial decision to make findings on each material charge, specification, and suitability factor relied on, and where fewer than all charges are sustained, OPM determines whether the sustained grounds support the action imposed (91 FR at 49068).
What Relief Looks Like Under 731.505(g)
Section 731.505(g)(1) sets the relief: correction, cancellation or modification of the suitability action, correction of relevant records, prospective eligibility or appointment-related relief, and, where applicable and legally authorized, back pay, interest and reasonable attorney fees consistent with subpart H of 5 CFR part 550. Then the limit: “the appellant is not entitled to compensatory damages or other relief not authorized by law” (id.).
Subsection (g)(2) is better than it sounds on a first reading. If a party requests reconsideration or the Director reopens the case, the agency must continue to provide ordered relief unless OPM stays it, and no stay may be ordered that would deprive the individual of pay and benefits while reconsideration is pending (id.). An employee restored by an initial decision keeps his pay through the agency’s appeal of that decision, and nothing comparable appears anywhere in the other three rules.
No Judicial Review Under 731.501(e)
Section 731.501(e) preserves independent jurisdiction in the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, an Inspector General, the Merit Systems Protection Board, the Department of Labor’s Veterans’ Employment and Training Service, and the Office of Special Counsel, and then states that “a party cannot obtain judicial review of a decision under this subpart” (91 FR at 49066).
Sidebar: Why NAF Employees Cannot Appeal
This is the rule in the August 3 package that hands an employee something real, and it is worth saying plainly that people paid from nonappropriated funds are shut out of it twice over.
Why NAF Employees Are Excluded Twice
Section 731.501(a) gives the suitability appeal to an applicant, appointee, or employee in the competitive service or the career Senior Executive Service (91 FR at 49066). An exchange cashier is in neither, and neither is a NAF club manager, a NAF lifeguard, or a NAF child development program assistant.
Section 2105(c) of title 5 deems an employee paid from nonappropriated funds of the Army and Air Force Exchange Service, the Navy Ships Stores Program, the Navy exchanges, the Marine Corps exchanges, the Coast Guard exchanges, or another armed-forces instrumentality “conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces” to be “not an employee for the purpose of … laws administered by the Office of Personnel Management,” with five exceptions that do not include part 731 (5 U.S.C. 2105(c), Office of the Law Revision Counsel). Part 731 is an OPM regulation. The analysis ends there.
Which means the two features that make this rule worth celebrating never arrive.
The Burden:
The agency does not carry the burden of proving the charges, because there is no section 731.501(b)(2) in play.
The Hearing:
The mandatory credibility hearing under section 731.505(d)(4) does not exist, because there is no adjudicator required to hold one.
What a NAF Employee Gets Instead
A NAF employee facing a character-and-conduct allegation gets whatever process the Department of Defense NAF system provides, and the relevant issuance by title is DoD Instruction 1400.25, Volume 1471, “Nonappropriated Fund (NAF) Labor-Management and Employee Relations,” dated March 20, 2015 with change three on July 29, 2025 (DoDI 1400.25 volume index, Executive Services Directorate). The issuance server refused every request I made for the volume, so I have its number, title, and dates and no knowledge at all of its terms.
I represent people on both sides of this line, often at the same installation in the same week, and the asymmetry is getting harder to defend as a matter of policy. A competitive-service employee accused of dishonest conduct now gets a hearing where credibility decides a material fact. A NAF employee accused of the identical conduct, working the identical hours on the identical installation, gets whatever the component’s own system provides. Nothing in the August 3 rules touched that gap, and nothing in them was meant to.
What to Do First
Two practical instructions follow.
Find out which fund pays you before you respond to anything, because the answer determines the forum, the burden and the deadline.
If you have moved between NAF and appropriated-fund employment, bring every Standard Form 50 and every NAF personnel action to the first meeting, because the date you crossed over may decide which of these two systems you are actually in.
The Strongest Objection, Answered Narrowly
The serious criticism of this rule is not about the burden or the hearing. It is that the whole structure sits inside OPM, and OPM writes the rules, trains the adjudicators, employs them, and reviews their decisions, with no court at the end of it. OPM received 343 comments, many of them pressing versions of that objection (91 FR at 49034). A generous burden allocation inside a closed system, the argument runs, is a generous burden allocation inside a closed system.
The criticism is formally correct, and I am not going to pretend otherwise, but what it misses is how these cases are actually lost.
Suitability cases are lost on the record, at the agency, before anybody appeals anything – on a notice nobody answered in full, an adjudicator’s file nobody demanded, a credibility dispute nobody framed as a credibility dispute. A burden that sits on the government and a hearing that must be granted change what competent counsel can build at that stage, and they change it regardless of who signs the final decision. The absence of an Article III backstop is a real problem for the system. It is not a reason to litigate the case in front of you any less well.
Your Bottom Line: Five Steps After a Suitability Notice
Step 1: Confirm This Is a Suitability Action
Ask first whether what you are facing is really a suitability action at all, because if a command has dressed up ordinary misconduct or a performance problem as unsuitability, the preamble at 91 FR 49049 says the appeals rule does not license that, and the mischaracterization is your first argument.
Step 2: Answer the Notice in Writing
Answer the proposal notice in full and in writing. You are entitled to a minimum of 30 calendar days and to review the materials relied upon on request, and both of those are enforceable in their own right under section 731.501(c)(2).
Step 3: Call It a Credibility Dispute
Frame every factual dispute that is material to the outcome as a credibility dispute, in writing, citing section 731.505(d)(4), because that is the sentence that converts a paper review into a hearing.
Step 4: Docket 30 Days in Eastern Time
Docket 30 calendar days from the effective date in Eastern Time and file early if you are overseas, with 10 extra days only if you are an applicant served by mail.
Step 5: Make the Agency Prove Its Case
Then remember that the agency has to prove its case. In a package of rules built almost entirely to shift the weight onto the employee, this is the one proceeding where the government has to come forward and carry it. Make them.
FAQs
Who Represents Overseas Federal Employees in OPM Suitability Appeals?
Overseas federal employees may be represented by counsel experienced in OPM suitability actions, federal personnel law, and Washington-time filing requirements. The Law Office of Will M. Helixon represents federal civilian employees in Germany, Japan, Korea, and the United States in covered suitability matters.
How Do I Find an Attorney for an OPM Suitability Appeal With a 30-Day Deadline?
If an OPM suitability appeal carries a 30-day deadline, look for counsel who handles federal personnel appeals and can identify the forum, effective date, coverage, and hearing trigger at the first review. Send the proposal, final decision, proof of service, personnel actions, and relied-upon materials immediately. The calendar will not wait for a leisurely intake process.
This post is written for general educational purposes and is not legal advice to any person or matter.
