(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.