(a) Right of appeal. An applicant, appointee, or employee in the competitive service or career Senior Executive Service, as those terms are used in this part, may appeal to OPM a suitability action taken against the appellant because of an unfavorable suitability determination.

(b) Burden of proof. (1) The appellant bears the burden to demonstrate, by a preponderance of the evidence:

(i) The timeliness of the written appeal;

(ii) That OPM possesses jurisdiction over the appeal; and

(iii) If the appellant challenges the suitability action based on improper procedure under paragraph (c)(2) of this section, that the responsible agency failed to provide one or more of the procedural protections identified in paragraph (c)(2) of this section.

(2) If the appellant contests the unfavorable suitability determination under paragraph (c)(1) of this section, and after the appellant establishes 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. This paragraph does not shift to the responsible agency the appellant's burden under paragraph (b)(1)(iii) of this section to demonstrate improper procedure.

(c) Appealable issues—(1) Unfavorable suitability determination. The appellant may contest the determination that he or she is unsuitable for Federal employment based on the specific factors found at § 731.202(b) provided that the unfavorable suitability determination resulted in a suitability action as defined at § 731.101(a).

(2) Improper procedure. An appellant who has been subject to a suitability action may challenge whether the responsible agency failed to provide:

(i) Advance written notice stating the charge(s) and specific reason(s) for the proposed action and notifying the appellant of the right to answer the notice in writing and to review, upon request, the materials relied upon;

(ii) Notice of the right to be represented by a representative chosen by the appellant;

(iii) A minimum of 30 calendar days from the date of the notice of proposed action to file a written response and furnish documentation; or

(iv) A written decision delivered to the appellant that explains the decision and the procedures for appealing the decision.

(d) Nonappealable issues. An applicant, appointee, or employee may not appeal an unfavorable suitability determination that does not result in a suitability action as those actions are defined at § 731.101(a).

(e) Exclusive appeal procedure. The procedures in this subpart are the sole means of appealing a suitability action under this part, but do not otherwise preclude an applicant, appointee, or employee from filing a complaint, appeal, or other matter 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. A party cannot obtain judicial review of a decision under this subpart.

(a) Filing an appeal. An applicant, appointee, employee, or authorized representative seeking to file an appeal or reconsideration under this subpart must utilize the electronic filing system identified on OPM's website. Unless a party demonstrates good cause and seeks approval from OPM, OPM will not accept pleadings, evidence, or other documents via electronic mail or postal mail.

(b) Time limits. An appellant may file an appeal within 30 calendar days from the effective date of a suitability action. An appeal is deemed timely when it is electronically filed by 11:59 p.m. Eastern Time on the 30th calendar day after the effective date of the action.

(1) In computing the number of days allowed for filing an appeal, the first day counted is the day after the effective date of the suitability action. In the case of an appointee or employee, the effective date of the action is the date the employing agency effectuates the suitability action, regardless of whether the agency is effectuating its own action or an OPM action. In the case of an applicant, the effective date of the action is the date on the notice of final action. When a notice of final action is served on an applicant by mail, 10 calendar days are added to the date of the notice for the deadline to file an appeal. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date.

(2) If an individual does not file an appeal within the time set by this section, the appeal will be dismissed as untimely filed unless the individual demonstrates good cause for an untimely appeal. The determination of good cause will be in the sole and exclusive discretion of OPM.

(c) E-filing procedures. (1) All parties and their representatives to an appeal or request to reopen and reconsider must register as instructed by OPM on its suitability action appeals website using a unique email address.

(2) Registration as an e-filer constitutes consent to accept electronic service of pleadings, evidence, notices, orders, and other documents filed by other e-filers or issued by OPM. No party may electronically file any document with OPM or access an appeal or reconsideration of an appeal unless registered as an e-filer or exempted under paragraph (c)(7) of this section.

(3) All notices, orders, decisions, and other documents issued by OPM, as well as all documents filed by parties, will be made available for viewing and downloading at OPM's electronic filing system. Access to documents is limited to the parties and their representatives who are registered as e-filers in the cases in which they were filed.

(4) All parties and their representatives must follow the instructions on OPM's website for properly filing all pleadings, evidence, and other documents. OPM may strike a document where an e-filer repeatedly fails to follow these instructions following receipt of a show cause order.

(5) Each e-filer must promptly update their profile in OPM's electronic filing system and notify OPM and other parties of any change in their address, telephone number, or email address by filing a pleading in each pending case with which they are associated. E-filers are responsible for monitoring case activity regularly in OPM's electronic filing system to ensure that they have received all case-related documents.

(6) A party or representative may withdraw their registration as an e-filer pursuant to the requirements posted on OPM's website. Withdrawing registration in OPM's electronic filing system means that, effective upon OPM's processing of a proper withdrawal, pleadings, evidence, orders, and other documents filed by a party, a party's representative, or OPM will no longer be served on that person electronically and that person will no longer have electronic access to their case records through OPM's electronic filing system. OPM may still process an appeal or request for reconsideration after a party withdraws as an e-filer. Withdrawal of e-filing registration by a party or representative will not be considered good cause for staying a case.

(7) OPM, in its sole and exclusive discretion, may exempt a party or representative from registering as an e-filer for good cause. A party or representative must promptly contact OPM as instructed on OPM's website to request an exemption from the e-filing requirements in this subpart. OPM will not find good cause for failing to timely file an appeal or seek reconsideration if the party or representative fails to contact OPM to request an exemption before any deadline to appeal or seek reconsideration.

(8) Documents filed in OPM's electronic filing system are deemed received on the date of the electronic submission.

(a) Appeal. An appeal must be in writing and shall state the basis of the appellant's appeal; the name, address, and email address or phone number of the appellant and appellant's representative, if any; and any documentation supporting the appellant's appeal.

(b) Agency response. (1) Upon receipt of the appeal, OPM will notify the agency responsible for the suitability action (responsible agency) of the appeal. Unless the OPM adjudicator processing the appeal provides otherwise, the responsible agency must file its response to an appeal within 30 calendar days of notification of the appeal; include all documents contained in the agency record of the action; include a designation of and signature by the authorized agency representative; and include any other documents or responses requested by OPM.

(2) For purposes of this subpart, responsible agency means the employing agency or, when OPM took, directed, or made the suitability action under review, the OPM office or component responsible for that action. When OPM is the responsible agency, the adjudicative function must be separated from any OPM office or official that participated personally and substantially in the suitability determination or action.

(3) When OPM is the responsible agency and is not the appellant's employing agency, OPM will also notify the employing agency of the appeal. The employing agency must furnish to OPM, within the time OPM specifies, any documents or information in its possession that are within the scope of the record of the action or that OPM otherwise requests, and must otherwise participate in the response to the appeal to the extent OPM directs.

(c) Record of the action. The responsible agency must file a complete, indexed, paginated, and certified record of the action with OPM. The record of the action includes all documents considered, relied upon, generated, received, issued, or served in investigating, proposing, deciding, directing, or effectuating the unfavorable suitability determination and consequent suitability action, regardless of whether such documents are maintained by the employing agency, OPM, an OPM investigative or adjudicative component, or another authorized investigative or personnel-vetting entity. When the responsible agency is not the employing agency, the employing agency must furnish to the responsible agency or to OPM, within the time OPM specifies, any documents within the scope of the record of the action that are in the employing agency's possession; OPM will identify for the employing agency the records the employing agency must furnish and the records OPM will provide. The record must include, as applicable:

(1) Documents establishing the appellant's status, position, appointment or application, and the legal authority under which the action was taken or directed;

(2) All investigative, vetting, personnel, application, and adjudicative materials considered or relied upon by the office or component that took or directed the action;

(3) The charge-by-charge analysis, suitability-factor analysis, consideration of mitigating, rehabilitative, contradictory, or exculpatory evidence, and rationale for the action selected;

(4) The written final decision, proof of service, effective-date documentation, appeal-rights notice, and documents implementing the action;

(5) Any direction from OPM to an employing agency to effectuate the action and any employing-agency implementation documents; and

(6) A certification that the submitted record is complete.

The responsible agency must serve the appellant with the agency record. The responsible agency must identify any withheld, redacted, or protectively handled document in an index or privilege log, unless identifying the document itself is prohibited by law. OPM may require a summary, substitute disclosure, protective order, in camera submission, or other procedure sufficient to provide the appellant a meaningful opportunity to respond, consistent with applicable law. No nondisclosed material may be relied upon to affirm the suitability action unless the appellant has received notice of the substance of the material and a meaningful opportunity to respond, except as otherwise authorized by law.

(d) Reply. Unless the OPM adjudicator provides otherwise, the appellant may file a reply to an agency response to an initial appeal utilizing the electronic filing system within 15 calendar days of the agency response. The reply may not raise new allegations of error unless the basis rests on information first disclosed in the agency response or unless OPM grants leave for good cause.

(e) Inspection of OPM's appellate record. The parties may inspect OPM's appellate record on request, subject to the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law.

(f) Service of documents. The parties will serve on each other copies of any and all information submitted to OPM with respect to an appeal, subject to the Privacy Act, applicable privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law. Such information must be served on all other parties at the same time the information is submitted to OPM and must be accompanied by a certificate of service stating how and when service was made.

(g) Untimely filings. Untimely filings may be accepted upon a party's showing of good cause at the sole and exclusive discretion of OPM.

(a) Designation of representative. An appellant may select a representative of his or her choice to assist in the preparation and presentation of an appeal, provided that the appellant submits his or her designation of representative in writing related to the specific appeal.

(b) Federal employee representatives; official time and reimbursement. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function.

(c) Disallowance of representative. OPM or the responsible agency may, in its sole and exclusive discretion, disallow an appellant's choice of representative when the representative is an employee of the responsible agency or OPM and the representative's activities would cause a conflict of interest or position.

(a) Appeals by non-OPM applicants, appointees, or employees. OPM will assign OPM personnel to adjudicate an appeal under this subpart by an applicant, employee, or appointee of an agency other than OPM. OPM personnel assigned to adjudicate an appeal under this subpart shall be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action. OPM adjudicators shall not consider material ex parte communications concerning the merits of an appeal. If such a communication occurs, OPM will place a summary of the communication in the record and provide the parties a reasonable opportunity to respond, unless disclosure is prohibited by law. In addition, no OPM employee may be assigned to adjudicate an appeal if the employee has a prior relationship with the appellant, had prior involvement in the suitability determination or suitability action under appeal, or has any other conflict that would reasonably call the employee's impartiality into question. When necessary, OPM may assign an administrative law judge to adjudicate an appeal.

(b) Appeals by OPM applicants, appointees, or employees. OPM will assign an administrative law judge to adjudicate an appeal under this subpart by an OPM applicant, appointee, or employee. To insulate the adjudication of appeals by such individuals from agency involvement, OPM will not disturb initial decisions in those cases unless a party shows there has been harmful procedural irregularity in the proceedings, a clear error of law, or a material factual error that affected the outcome of the appeal. For purposes of this paragraph, the term harmful procedural irregularity means an irregularity in the application of procedures that was likely to have caused the administrative law judge to reach a conclusion different from the one he or she would have reached in the absence or cure of the irregularity. The assignment of an administrative law judge under this paragraph (b) or paragraph (a) of this section does not make 5 U.S.C. 554,556,or.

(c) Training of personnel assigned to adjudicate appeals. All OPM employees or administrative law judges assigned by OPM to adjudicate appeals under this subpart must have completed training that complies with national training standards for suitability adjudicators that qualifies them to review OPM and agency suitability determinations and actions.

(d) Ascertainment of facts. (1) OPM may require either party, or the employing agency if the employing agency is not a party to the appeal, to provide additional information and may investigate the facts underlying an unfavorable suitability determination or suitability action in the course of adjudicating an appeal if OPM determines, in its sole discretion, that the existing record is insufficient to resolve a material issue within OPM's jurisdiction and that the investigation is reasonably likely to produce information material to resolving that issue.

(2) When OPM conducts an investigation under this paragraph, OPM will:

(i) Inform the appellant, the appellant's representative, if any, and the responsible agency, and, if different, the employing agency, of the investigation and the nature of the information requested; and

(ii) Provide the appellant, the appellant's representative, if any, and the responsible agency, and, if different, the employing agency, with the results of the investigation and a reasonable opportunity to submit argument or additional information to support their positions.

(3) OPM's review of an unfavorable suitability determination and consequent suitability action 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.

(4) 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. The hearing will be limited to the material factual issues identified by OPM or the administrative judge as necessary to resolve the appeal.

(e) Failure to participate. If a party fails to participate in an investigation or hearing pursuant to paragraph (d) of this section, OPM may, except when prohibited by law, impose any sanction listed at § 731.506(b)(1) through (3).

(f) Initial decision. (1) OPM may issue an initial decision that affirms, reverses, modifies, vacates, or remands the unfavorable suitability determination and consequent suitability action, in whole or in part. OPM will notify the appellant, the responsible agency, and, if different, the employing agency in writing of its decision on the appeal.

(2) The initial decision must make findings on each material charge, specification, and suitability factor relied upon to support the action. If fewer than all charges or specifications are sustained, OPM will determine whether the sustained grounds support the suitability action imposed and may affirm, reverse, modify, vacate, or remand the action, as appropriate.

(g) Remedies. (1) If the appellant is the prevailing party, OPM will order appropriate relief authorized by law, which may include 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 part 550 of this chapter. The appellant is not entitled to compensatory damages or other relief not authorized by law.

(2) If a party timely requests reopening and reconsideration of an initial decision or the OPM Director reopens and reconsiders an initial decision, the responsible agency must continue to provide ordered relief unless OPM issues an order staying any such relief. No such stay may be ordered that would deprive the individual of pay and benefits while the initial decision is pending reconsideration.

(a) Cease-and-desist order. OPM may issue a protective order or cease-and-desist directive to protect the integrity of the adjudicatory process, prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information, or misuse of nonpublic information obtained through the appeal. OPM may do this sua sponte, or at the request of a party, preemptively or at any juncture in the appeal process. A party requesting OPM to issue a protective order or cease-and-desist order should file such request using the e-filing procedures prescribed at § 731.502(c) and must include a statement of reasons justifying the request, together with any relevant documentary evidence. Any protective order issued by OPM must be no broader than reasonably necessary and must not restrict lawful communications protected by law.

(b) Failure to comply with an OPM order. When a party to an appeal fails to comply with an order issued under paragraph (a) of this section, OPM may, except when prohibited by law:

(1) Draw all inferences in opposition to the noncompliant party with regard to the appeal in question;

(2) Prohibit the noncompliant party from introducing evidence, or additional evidence, concerning the appeal, or otherwise relying on the record; or

(3) Eliminate from consideration any appropriate part of the filings or other submissions of the noncompliant party.

(c) Scope of sanctions. Any sanction issued under paragraph (b) of this section must be proportionate, causally related to the violation, and no broader than necessary to protect the adjudicatory process.

(a) Upon a request from either party to the dispute, OPM may, in its sole and exclusive discretion, reopen and reconsider an initial decision issued under this subpart. A party may request reopening and reconsideration of an initial decision within 30 calendar days from issuance of the initial decision.

(b) The request to reopen and reconsider must be filed using the e-filing system identified on OPM's website and must explain how the ground(s) relied on affected the outcome of the case. Any documents or further filings related to a request to reopen and reconsider must be filed at the same time the request is submitted.

(c) Grounds for which OPM may grant a request to reopen and reconsider are:

(1) The initial decision contains an erroneous finding of material fact sufficient to warrant a different outcome;

(2) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The party must explain how the error affected the outcome of the case;

(3) New and material evidence or legal argument is available that, despite the party's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed; or

(4) OPM finds good cause to reopen and reconsider an appeal.

(d) In any appeal that is reopened and reconsidered, OPM may:

(1) Issue a reopened and reconsidered decision (“R&R decision”) that affirms, reverses, modifies, or vacates the initial decision, in whole or in part;

(2) Require the parties to submit argument and evidence;

(3) Take any other action necessary for final disposition of the case; and

(4) Issue an order with a date for compliance with the R&R decision.

(e) There is no further right of administrative appeal from the R&R decision.

The Director may, on the Director's own initiative and before a decision becomes final under § 731.509, reopen and reconsider any initial decision or reopened and reconsidered decision. In determining whether to exercise this authority, the Director may consider, among other things, whether the decision contains clear legal error; rests on an erroneous finding of material fact; involves an issue of exceptional importance, an issue affecting the governmentwide administration of the civil service laws, rules, regulations, or OPM policy, or a conflict among OPM decisions; or otherwise warrants Director review. This section does not create a right to request Director review. Upon reopening and reconsideration, the Director may take any action described in § 731.507(d).

(a) The initial decision becomes OPM's final decision 30 calendar days after issuance unless, before that time, a party timely requests reopening and reconsideration under § 731.507 or the Director reopens the decision under § 731.508.

(b) A timely request under § 731.507 suspends finality. If OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes OPM's final decision 30 calendar days after issuance of the denial or dismissal, unless the Director reopens the initial decision under § 731.508 before that time. If OPM grants the request, a reopened and reconsidered decision becomes OPM's final decision 30 calendar days after issuance unless the Director reopens that decision under § 731.508 before that time.

(c) An untimely request under § 731.507 does not suspend or otherwise affect finality. If OPM accepts and grants an untimely request for good cause, any resulting reopened and reconsidered decision becomes final as provided in paragraph (b) of this section.

(d) A decision by the OPM Director under § 731.508 that disposes of the appeal is OPM's final decision and is effective upon issuance. If the Director remands the appeal or directs further proceedings, any resulting decision becomes final under this section.

(e) There is no further right of appeal of a final decision by OPM.

(f) OPM will make publicly available final merits decisions or de-identified summaries of final merits decisions issued under this subpart, consistent with 5 U.S.C. 552,the,and. Public summaries will identify the procedural posture, sustained and unsustained suitability factors, disposition, and remedy, without disclosing protected information. OPM will also make a final merits decision available upon request to the applicant, appointee, or employee involved in the proceeding; the individual's representative under § 731.504; or a representative of the Federal agency or office involved in the proceeding who has a need to know.