PART 731—SUITABILITY AND FITNESS

Chapter I—Office of Personnel Management › Subchapter B—Civil Service Regulations

Subpart A—Scope

§ 731.101 Definitions and purpose.

(a) The following definitions apply for the purposes of this part:

Applicant means an individual who is being considered or has been considered for employment in the competitive service or career Senior Executive Service.

Appointee means an individual who has entered on duty and is in the first year of employment in a competitive service or career Senior Executive Service position when it is employment subject to investigation. When the individual is serving a probationary or trial period, the individual's status as an appointee will extend through the end of the initial probationary/trial period, if longer than one year.

Competitive service or career Senior Executive Service, for the purposes of this part, refers to a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, or a career appointment to a position in the Senior Executive Service.

Contractor employee means an individual who performs work for or on behalf of any agency under a contract and who, to perform the work specified under the contract, will require access to space, information, information technology systems, staff, or other assets of the Federal Government, and who could, by the nature of their access or duties, adversely affect the integrity or efficiency of the Government. Such contracts include but are not limited to: personal service contracts; contracts between any non-Federal entity and any agency; and subcontracts between any non-Federal entity and another non-Federal entity to perform work related to the primary contract with the agency. The term contractor employee includes employees of a grantee of any agency or any other category of person who performs work for or on behalf of an agency but does not include a Federal employee.

Core duty means a continuing responsibility that is of particular importance to the relevant position or the achievement of an agency's mission.

Days means calendar days unless otherwise noted in this part.

Employee means an individual who has completed the first year of an appointment in the competitive service or career Senior Executive Service when it is employment subject to investigation and is no longer serving the initial probation or trial period, if applicable. In the case of an appointee whose initial probation or trial period is for more than one year, the individual will be considered an employee at the completion of the initial probation or trial period.

Employment subject to investigation, except as described elsewhere in this part, includes an appointment to the competitive service or career Senior Executive Service, an appointment to the excepted service, employment as a contractor employee, or employment as a nonappropriated fund employee.

Excepted service means any position of the executive branch either excepted from the competitive service or which is not in the Senior Executive Service.

(1) For the purposes of this part, excepted service does not include:

(i) Any position in an element of the intelligence community as defined in the National Security Act of 1947, as amended, to the extent that the individual is not otherwise subject to OPM appointing authorities;

(ii) Any position where OPM is statutorily precluded from prescribing such standards; and

(iii) Any position when filled by political appointment.

(2) Senior Executive Service noncareer, limited term, and limited emergency appointments are not subject to suitability actions under this part.

(3) Excepted service does not mean any position excepted from the competitive service of the executive branch that could be noncompetitively converted to the competitive service.

Fitness is the level of character or conduct determined necessary for an individual to perform work for a Federal agency as an employee in the excepted service, as a contractor employee, or as a nonappropriated fund employee.

Fitness determination means a decision by an agency that an individual has or does not have the required level of character and conduct necessary to perform work for a Federal agency as an excepted service employee. These determinations are based on whether an individual's character or conduct may have an adverse impact on the integrity or efficiency of the service.

Material means, in reference to a statement, one that affects, or has a natural tendency to affect, or is capable of influencing, an official decision even if OPM or an agency does not rely upon it.

Nonappropriated fund employee means an employee paid from nonappropriated funds of an instrumentality of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the Armed Forces as described in 5 U.S.C. 2105.

Political appointment means an appointment by Presidential nomination for confirmation by the Senate, an appointment by the President without Senate confirmation (except those appointed under 5 CFR 213.3102(c)); an appointment to a position compensated under the Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a White House Fellow to be assigned as an assistant to a top-level Federal officer (5 CFR 213.3102(z)); a Schedule C appointment (5 CFR 213.3301 and 213.3302); a noncareer, limited term, or limited emergency Senior Executive Service appointment (5 CFR part 317, subpart F); an appointee to serve in a political capacity under agency-specific authority; and a provisional political appointment.

Suitability action means one or more of the following outcomes:

(1) Cancellation of eligibility;

(2) Removal;

(3) Cancellation of reinstatement eligibility; and

(4) Debarment.

Suitability determination means a decision by OPM or an agency with delegated authority that an individual is suitable or is not suitable for employment in the competitive service or career Senior Executive Service in the Federal Government or a specific Federal agency. A suitability determination is based on whether an individual's character or conduct may have an adverse impact on the integrity or efficiency of the service.

(b) The purpose of this part is as follows:

(1) To establish investigation, continuous vetting, and reciprocity requirements for an appointment to a position in the competitive service and excepted service and for career appointment in the Senior Executive Service. Contractor employee fitness and nonappropriated fund employee fitness, as addressed in sections 3(b) and 3(c) of Executive Order 13488, are also subject to the position designation requirements, investigative standards, and reciprocity-requirements in this part.

(2) To establish the criteria for making determinations of suitability for the competitive service or career Senior Executive Service and to establish a minimum standard of fitness for the excepted service.

(3) To establish the procedures for taking suitability actions in the case of the competitive service or career Senior Executive Service.

(c) An Agency shall exercise due regard to this part and supplemental guidance if determining fitness for employment as a contractor employee or as a nonappropriated fund employee.

(d) Any determination made and action taken under this part are distinct from: an objection to an eligible or pass over of a preference eligible; OPM's or an agency's decision on a request, made under 5 U.S.C. 3318 and 5 CFR 332.406; and any determination of eligibility for access to classified information or for assignment to, or retention in, sensitive national security positions made under E.O. 12968, E.O. 10865, or E.O. 13467, as amended, or similar authorities.

§ 731.102 Implementation.

(a) An investigation conducted under this part may not be used for any other purpose except as provided in a Privacy Act system of records notice published by the agency conducting the investigation and section 1.1(e) of Executive Order 13467, as amended.

(b) OPM may set forth any policy, procedure, criteria, standard, quality control procedure, and supplementary guidance to implement this part in an OPM or joint Executive Agent issuance.

(c) Suitability determinations and actions under this part must be applied consistent with both the Merit Systems Principles set forth in 5 U.S.C. 2301 and with 5 U.S.C. 2302(b), which sets forth prohibited personnel practices.

§ 731.103 Delegation to agencies for the competitive service and career Senior Executive Service.

(a) Subject to the limitations and requirements of paragraphs (c), (e), and (g) of this section, OPM delegates to the head of an agency authority for making a suitability determination and taking a suitability action (including limited, agency-specific debarments under § 731.205) in a case involving an applicant or appointee. In a case involving an appointee where the individual has converted to an employee in a prior competitive service or career Senior Executive Service appointment, agency heads must consider the individual to be an employee.

(b) In a case involving an employee, the head of the employee's employing agency, or designee, may, in its sole and exclusive discretion, make a proper and sufficient referral to OPM, as specified in OPM issuances as described in § 731.102(b), if the employee's conduct appears to warrant an unfavorable suitability determination.

(c) When an agency, acting under delegated authority from OPM, determines that a governmentwide debarment by OPM under § 731.204(a) may be an appropriate action, whether on an applicant, appointee, or employee, it must refer the case to OPM for debarment consideration. An agency must make a referral, but only after sufficient resolution of the suitability issue(s) to determine if a governmentwide debarment appears warranted.

(d) An agency exercising authority under this part by delegation from OPM must adhere to OPM requirements as stated in this part and issuances described in § 731.102(b). An Agency must also implement policies and maintain records demonstrating that they employ reasonable methods to ensure adherence to these issuances.

(e) OPM reserves the right to undertake a determination of suitability based upon evidence of falsification or fraud relating to an examination or appointment at any point when information giving rise to such a charge is discovered. OPM must be informed in all cases where there is evidence of material, intentional false statements, or deception or fraud, in examination or appointment, and OPM will take a suitability action where warranted.

(f) OPM may revoke an agency's delegation to make suitability determinations and take suitability actions under this part if an agency fails to conform to this part or OPM issuances as described in § 731.102(b).

(g) OPM retains sole jurisdiction to make a final suitability determination and take an action under this part in any case where there is evidence that there has been a material, intentional false statement, or deception or fraud, in examination or appointment. OPM also retains sole jurisdiction to make a final suitability determination and take an action under this part in any case when there is evidence that there has been knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force. An agency must refer these cases to OPM for suitability determinations and suitability actions under this authority. OPM also retains sole jurisdiction to take a suitability action under this part in any case involving an employee for post-appointment conduct. Although no prior approval is needed, notification to OPM is required if the agency wants to take, or has taken, action under its own authority (such as 5 CFR part 359 or 752) in cases involving conduct fitting within any of these factors or involving an employee for post-appointment conduct. In addition, except as limited by § 731.105(d), OPM may, in its discretion, exercise its jurisdiction under this part in any case it deems necessary regardless of whether the agency may adjudicate under another authority.

§ 731.104 Investigation and reciprocity requirements.

(a) To establish an individual's suitability or fitness, employment subject to investigation (see definitions § 731.101(a)) requires the individual to undergo investigation by an agency with authority to conduct investigations except as described in paragraphs (a)(1) through (3) of this section.

(1) An agency must reciprocally accept a prior background investigation in the event of promotion, demotion, reassignment, or transfer from employment subject to investigation to other employment subject to investigation without a break in service, unless the new employment is at a higher risk level.

(2) An agency must reciprocally accept a prior background investigation when the person entering employment subject to investigation has undergone a background investigation that is at or above the level required for the position as determined by position designation and has a qualifying break in service specified in supplemental guidance, unless the agency obtains new information in connection with the person's employment that calls into question the person's suitability or fitness under § 731.202. Agencies must request such checks as may be specified in implementing guidance and must enroll individuals re-entering service after a break in service into continuous vetting, consistent with the requirements in § 731.106(d).

(3) Positions that are intermittent, per diem, or temporary in nature, not to exceed an aggregate of 180 days per year in either a single continuous appointment or series of appointments, do not require a background investigation for suitability or fitness. The employing agency, however, must conduct such checks as it deems appropriate to ensure the suitability or fitness of the person. The employing agency must conduct such vetting as required under OPM issuances.

(b) An individual does not have to serve a new probationary or trial period in the Civil Service merely because the individual's employment is subject to investigation under this section. An individual's probationary or trial period in the Civil Service is not extended because the individual's employment is subject to investigation under this section.

(c) A suitability determination must be made for each appointment in the competitive service or career Senior Executive Service and a fitness determination must be made for each appointment in the excepted service, except as described in paragraph (c)(2) of this section.

(1) In the case of a prior investigation that is reciprocally accepted, if the record in the Central Verification System or its successor system does not reflect a prior favorable suitability or fitness determination, the agency must review the prior investigation for the purpose of making a suitability or fitness determination.

(2) In the case of a prior investigation that is reciprocally accepted, if the prior investigation was favorably adjudicated for suitability or fitness, the agency must accept the prior determination except that the agency must make a new determination where:

(i) The investigative record on file for the individual shows conduct that is incompatible with the core duties of the relevant position; or

(ii) The agency has prescribed additional factors as permitted under § 731.202(b) that were not addressed in the prior favorable adjudication, in which case the agency must conduct an adjudication using only those additional factors.

(d) Continuous vetting requirements under § 731.106 are not affected by this section.

§ 731.105 Authority to take suitability actions in cases involving the competitive service or career Senior Executive Service.

(a) OPM or an agency acting under delegated authority may take a suitability action in connection with any application for, or appointment to, the competitive service or career Senior Executive Service. In the case of an appointee, OPM or an agency may consider conduct occurring prior to the appointment or occurring post-appointment to serve as the basis for the action.

(1) OPM's or an agency's authority to complete a suitability action continues when an application is withdrawn, when an offer of employment is withdrawn, or when an appointee separates from employment. OPM's authority to complete a suitability action continues when an employee separates from employment.

(2) OPM's or an agency's authority to take a suitability action includes the case of an application for or appointment to the competitive service or career Senior Executive Service from another type of position when a prior investigation is being reciprocally accepted as described in § 731.104(a).

(b) OPM may take a suitability action under this part against an applicant or appointee based on the criteria in § 731.202. When the basis for the action is post-appointment conduct, OPM may take a suitability action against an appointee only when there is a proper and sufficient referral by the head of the appointee's employing agency, or designee.

(c) Except as limited by § 731.103(c), (e), and (g), an agency, exercising delegated authority, may take a suitability action under this part against an applicant or appointee based on the criteria of § 731.202.

(d) Only OPM may take a suitability action under this part against an employee in the competitive service or career Senior Executive Service based on the criteria of § 731.202. When the basis for the action is post-appointment conduct, OPM may take a suitability action against an employee only when there is a proper and sufficient referral by the head of the employee's employing agency, or designee.

(e) An agency may not take a suitability action against an employee in the competitive service or career Senior Executive Service. If the agency has information that an employee's conduct warrants an unfavorable suitability determination, the head of the agency, or designee, may make a proper and sufficient referral to OPM, as specified in OPM issuances as described in § 731.102(b). OPM will review the referral and may take a suitability action if warranted under this part.

(f) Nothing in this part precludes an agency from taking an adverse action under the procedures and standards of part 752 of this chapter, or from terminating a probationer under the procedures of part 11 or part 359 of this chapter or under agency specific authorities. An agency must notify OPM to the extent required in § 731.103(e) and (g) if it wants to take, or has taken, action under these authorities. OPM retains the right to take a suitability action even in those cases where the agency makes an adjudicative determination under another authority.

§ 731.106 Designation of public trust positions and investigative requirements.

(a) Risk designation. For every position in the competitive service; in the excepted service; to be filled with a career appointment in the Senior Executive Service; or in which the occupant performs a service as a contractor employee or as a nonappropriated fund employee, an agency head must designate the position at high, moderate, or low risk level (in accordance with the risk designation system issued jointly by the Executive Agents; see § 731.102(b)), as determined by the position's potential for adverse impact to the efficiency or integrity of the service.

(b) Public trust position. A position at the high or moderate risk level is designated as a “public trust” position. Such positions may involve policy making, major program responsibility, public safety and health, law enforcement duties, fiduciary responsibilities, or other duties demanding a significant degree of public trust such as positions involving access to or control of financial records or with significant risk for causing damage or realizing personal gain.

(c) Investigative requirements. (1) An individual entering employment subject to investigation under this part must undergo a background investigation as described in § 731.104. OPM establishes minimum investigative requirements correlating to the risk level. An investigation should be initiated before the individual is appointed or otherwise becomes employed by or on behalf of the agency; however, where an agency does not timely initiate the investigation, it must do so as soon as possible, even if the appointment has already occurred.

(2) Any position subject to risk designation under this section must also receive a sensitivity designation of Special-Sensitive, Critical-Sensitive, Noncritical-Sensitive, or Non-sensitive, as appropriate. This designation is complementary to the risk designation and may have an effect on the position's investigative requirement. Part 1400 of this title details the various sensitivity levels and investigative requirements for positions designated as sensitive. Procedures for determining investigative requirements for a position based upon risk and sensitivity will be published in issuances, as described in § 731.102(b) and 5 CFR part 1400.

(3) If a suitability or fitness issue develops prior to the required investigation, OPM or the agency may request investigation from an authorized investigative service provider sufficient to resolve the issue and support an unfavorable suitability or fitness determination. However, inquiries into criminal or credit history cannot occur until a conditional offer has been made, as specified in § 731.106(g). If warranted for positions in the competitive service or career Senior Executive Service, an agency may also take suitability action, in accordance with the authorities described in this part. If the individual is then appointed or otherwise becomes employed by or on behalf of the agency, the minimum level of investigation must be conducted as required by paragraph (c)(1) of this section.

(d) Continuous vetting requirements. (1) Individuals occupying positions of employment subject to investigation are also subject to continuous vetting through periodic checks of their background at any time in accordance with standards issued by OPM. Checks must be conducted at regular intervals, based on the type of check and with consideration of position risk and sensitivity. The nature of a continuous vetting check, and any additional requirements and parameters, to include requirements for agencies to consider information related to the individual's conduct available from internal agency sources, are specified in supplemental issuances as described in § 731.102(b). An individual may be subjected to continuous vetting only if they have signed an authorization for release of information permitting a disclosure for continuous vetting purposes. Continuous vetting for an individual in a public trust position satisfies the requirement for a periodic reinvestigation of an individual in a public trust position as directed in E.O. 13488, as amended. An agency must ensure that each continuous vetting check is conducted and a determination made regarding continued employment. If an agency makes an unfavorable determination based on information from a continuous vetting check on an appointee, the agency may take a suitability action subject to the limitations of § 731.103(c), (e), and (g). If post-appointment conduct discovered in a continuous vetting check on an employee appears to warrant an unfavorable suitability determination, the agency may, in its sole and exclusive discretion, refer the matter to OPM for review and possible suitability action.

(2) An individual in a sensitive position who is continually vetted to standards established by the Security Executive Agent for satisfying periodic reinvestigation and/or continuous vetting requirements meets the continuous vetting requirements for a public trust position.

(3) An agency must notify each employee covered by this section of the continuous vetting requirements under this paragraph (d).

(e) Risk level changes. If an individual in employment subject to investigation experiences a change to a higher position risk level due to promotion, demotion, reassignment, or transfer, or the risk level of the individual's position is changed to a higher level, the individual may remain in or encumber the position. Any upgrade in the investigation required for the new risk level should be initiated within 14 days after the promotion, demotion, reassignment, transfer or new designation of risk level is final or as otherwise required by 5 CFR part 1400.

(f) Completed investigations. An investigation or continuous vetting check under paragraphs (c), (d), and (e) of this section supports a determination by the employing agency of whether the findings of the investigation may require referral to OPM for a potential suitability action or would justify an action by the agency under this part or under another applicable authority, such as part 359 or 752 of this chapter. Sections 731.103 and 731.105 address whether an agency may take an action under this part and whether the agency must refer the matter to OPM for a suitability action including debarment consideration.

(g) Criminal or credit history inquiries. A hiring agency may not make specific inquiries concerning an applicant's criminal background in oral or written form (including through the OF-306 or other forms used to conduct vetting for Federal employment, USAJOBS, or any other electronic means) unless the hiring agency has made a conditional offer of employment to the applicant. For criminal inquiries prior to a conditional offer, this prohibition does not apply to applicants for positions excepted under 5 CFR 920.201(b). For competitive service or career Senior Executive Service, a hiring agency may not make specific inquiries concerning an applicant's credit background in oral or written form (including through the OF-306 or other forms used to conduct vetting for Federal employment, USAJOBS, or any other electronic means) unless the hiring agency has made a conditional offer of employment to the applicant. Agencies may request an exception to the provision for making credit inquiries in advance of a conditional offer in accordance with the provisions in 5 CFR part 330, subpart M. Agencies may make an inquiry into an applicant's Selective Service registration, military service, citizenship status, where applicable, or previous work history, prior to making a conditional offer of employment to an applicant.

(h) Recordkeeping and use of information. When an agency makes a suitability or fitness determination based on an investigation, the agency must:

(1) Ensure that any record used in making the determination is accurate, relevant, timely, and complete to the extent reasonably necessary to ensure fairness to the individual in any determination;

(2) Ensure that all applicable administrative procedural requirements provided by law, including the regulations in this part and issuances as described in § 731.102(b) have been observed;

(3) Consider all available information in reaching its final decision on a suitability or fitness determination or suitability action, except information furnished by a non-corroborated confidential source, which may be used only for limited purposes, such as information used to develop a lead or in interrogatories to a subject, if the identity of the source is not compromised in any way; and

(4) Keep any record of the agency determination or action as required by issuances as described in § 731.102(b).

Subpart B—Determinations of Suitability or Fitness; Suitability Actions in Cases Involving the Competitive Service or Career Senior Executive Service

§ 731.201 Standard.

The standard for a suitability and fitness determination and for a suitability action defined in § 731.203 is that the action will protect the integrity or promote the efficiency of the service.

§ 731.202 Criteria for making suitability and fitness determinations.

(a) General. OPM, or an agency to which OPM has delegated suitability authority, must base its suitability determination on the presence or absence of one or more of the specific factors in paragraph (b) of this section. An agency is responsible for making a fitness determination for an excepted service position covered by this part but must apply the specific factors in paragraph (b) as the minimum standards for making the determination. When applying these criteria, an agency must also apply guidance in supplemental issuances, as described in § 731.102(b). If using these factors to also make a Personal Identity Verification (PIV) Credential determination as outlined in OPM issuances regarding PIV credentialing eligibility, an agency must also ensure they have verified the individual's identity.

(b) Specific factors. Only OPM may take a suitability action considering the factors in paragraph (b)(3) or (b)(8) of this section. Agencies may use the factor in paragraph (b)(10) in applicant and appointee suitability cases but not employee cases; however, OPM may use this or any factor in employee cases. When making a suitability determination, OPM or an agency will consider only the following factors to determine if an individual is suitable. When making fitness determinations, an agency must consider all of the following factors as a minimum standard, but it may prescribe additional factors to protect the integrity and promote the efficiency of the service, when job-related and consistent with business necessity.

(1) Misconduct or negligence in employment. This factor includes:

(i) Theft or misuse of Government resources and equipment, or negligent loss of material Government resources and equipment during employment with, or on behalf of, the Federal Government or a state, territorial, or local government; and

(ii) Refusal to certify compliance with any applicable non-disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure to adhere to those compliance obligations in the course of Federal employment.

(2) Criminal conduct.

(3) Material, intentional false statement, or deception or fraud, in examination or appointment.

(4) Dishonest conduct.

(5) Failure to comply with financial obligations or generally applicable civil legal obligations, such as timely filing of tax returns.

(6) Excessive alcohol use, without evidence of rehabilitation, of a nature and duration that suggests the individual would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the individual or others.

(7) Illegal use of narcotics, drugs, or other controlled substances, without evidence of rehabilitation.

(8) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force.

(9) Violent conduct.

(10) Any statutory or regulatory bar or any other provision of law, regulation, Executive order, or other binding legal authority that prevents the lawful employment of the individual in the position in question, such as citizenship or nationality requirements.

(c) Additional considerations. OPM and an agency must consider any of the following additional considerations to the extent OPM or the relevant agency, in its sole discretion, deems any of them pertinent to the individual case:

(1) The nature of the position for which the individual is applying or in which the individual is employed;

(2) The nature and seriousness of the conduct;

(3) The circumstances surrounding the conduct;

(4) The recency of the conduct;

(5) The age of the individual involved at the time of the conduct;

(6) Contributing societal conditions; and

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

(d) All persons responsible for suitability screening, review, or making suitability determinations under this part must be trained in accordance with national training standards for suitability adjudicators issued in supplemental issuances, as described in § 731.102(b).

§ 731.203 Suitability actions by OPM and other agencies for the competitive service or career Senior Executive Service.

(a) This section pertains only to the competitive service or career Senior Executive Service as defined in § 731.101.

(b) A suitability action may be taken only by OPM or an agency with delegated authority under the procedures in subparts C and D of this part.

(c) A non-selection, or cancellation of eligibility for the competitive service based on an objection to an eligible or pass over of a preference eligible under 5 CFR 332.406, is not a suitability action even if it is based on reasons set forth in § 731.202.

(d) A suitability action may be taken against an applicant or an appointee to the competitive service or career Senior Executive Service when OPM or an agency exercising delegated authority under this part finds that the applicant or appointee is unsuitable for the reasons cited in § 731.202, subject to the agency limitations of § 731.103(c), (e), and (g).

(e) In taking a suitability action against an applicant, appointee, or employee in the competitive service or career Senior Executive Service pursuant to § 731.105(a) and (d) and in accordance with 5 CFR 5.3, OPM may require an agency to execute the action.

(f) OPM may cancel any reinstatement eligibility obtained as a result of a determination based on the criteria of § 731.202.

(g) An action to remove an appointee or employee for suitability reasons under this part is not an action under 5 CFR part 11, 359, or 752. Where conduct covered by this part may also form the basis for an action under 5 CFR part 11, 359, or 752, an agency may take the action under 5 CFR part 11, 359, or 752, as appropriate, instead of under this part. An agency must notify OPM to the extent required in § 731.103(g) if it wants to take, or has taken, action under these authorities. OPM reserves the right to also take an action under this part.

(h) An agency does not need approval from OPM before taking an unfavorable suitability action. However, it is required to report to the Central Verification System or its successor, each unfavorable suitability action taken under this part within 30 days after it takes the action. Also, each suitability determination based on an investigation must be reported to the Central Verification System or its successor as soon as possible and in no event later than 90 days after receipt of the final report of investigation.

§ 731.204 Debarment by OPM in cases involving the competitive service and career Senior Executive Service.

(a) When OPM finds an individual unsuitable for any reason listed in § 731.202, OPM, in its discretion, may, for a period of not more than 3 calendar years from the date of the unfavorable suitability determination, deny that individual examination for, and appointment to, the competitive service and career appointment in the Senior Executive Service.

(b) OPM may impose an additional period of debarment following the expiration of a period of OPM or agency debarment or when new conduct arises while under debarment, but only after the individual again becomes an applicant, appointee, or employee subject to OPM's suitability jurisdiction, and the individual's suitability is determined in accordance with the procedures of this part. An additional debarment period may be based in whole or in part on the same conduct on which the previous suitability action was based, when warranted, or new conduct.

(c) OPM, in its sole discretion, determines the duration of any period of debarment imposed under this section.

§ 731.205 Debarment by agencies in cases involving the competitive service and career Senior Executive Service.

(a) Subject to the provisions of § 731.103, when an agency finds an applicant or appointee unsuitable based upon reasons listed in § 731.202, the agency may, for a period of not more than 3 years from the date of the unfavorable suitability determination, deny that individual examination for, and appointment to, either all, or specific competitive service positions and career appointment to all, or specific Senior Executive Service positions within that agency.

(b) The agency may impose an additional period of debarment following the expiration of a period of OPM or agency debarment, but only after the individual again becomes an applicant or appointee subject to the agency's suitability jurisdiction, and his or her suitability is determined in accordance with the procedures of this part. An additional debarment period may be based in whole or in part on the same conduct on which the previous suitability action was based, when warranted, or new conduct.

(c) The agency, in its sole discretion, determines the duration of any period of debarment imposed under this section.

(d) The agency is responsible for enforcing the period of debarment and taking appropriate action if an individual applies for a position at that agency during the debarment period or is examined for or appointed to a position at that agency during the debarment period. This responsibility does not limit OPM's authority to exercise jurisdiction itself and take any action OPM deems appropriate.

§ 731.206 Reporting requirements for investigations and suitability and fitness determinations.

An agency must report to the Central Verification System or its successor the level or nature, result, and completion date of each background investigation, reinvestigation, or enrollment in Continuous Vetting; each agency decision based on such investigation, reinvestigation, or Continuous Vetting; and any personnel action, to include suitability actions, taken based on such investigation, reinvestigation, or Continuous Vetting, as required in supplemental guidance. An agency must also report to the Central Verification System or its successor any suitability determination and action taken based on an internal agency investigation, such as a suitability action taken as a result of an Employee and Labor Relations investigation.

Subpart C—OPM Suitability Action Procedures for the Competitive Service or Senior Executive Service

§ 731.301 Scope.

This subpart covers OPM-initiated suitability actions against an applicant, appointee, or employee in the competitive service or career Senior Executive Service and OPM suitability actions against an appointee or employee in the competitive service or career Senior Executive Service for post-appointment conduct when an agency has referred the matter to OPM to take a suitability action.

§ 731.302 Notice of proposed action.

(a) OPM will notify the applicant, appointee, or employee (hereinafter, the “respondent”) in writing of the proposed action, the charges against the respondent, and the availability of review, upon request, of the materials relied upon. The notice will set forth the specific reasons for the proposed action and state that the respondent has the right to answer the notice in writing. The notice will further inform the respondent of the time limit for the answer as well as the address to which an answer must be made.

(b) The notice will inform the respondent that he or she may be represented by a representative of the respondent's choice and that if the respondent wishes to have such a representative, the respondent must designate the representative in writing.

(c) OPM will serve the notice of proposed action upon the respondent by mail, secure email, or hand delivery no less than 30 days prior to the effective date of the proposed action to the respondent's last known residence or duty station.

(d) If the respondent encumbers a position covered by this part on the date the notice is served, the respondent is entitled to be retained in a pay status during the notice period.

(e) OPM will send a copy of the notice to any employing agency that is involved.

§ 731.303 Answer.

(a) Respondent's answer. A respondent may answer the charges in writing and furnish documentation and/or affidavits in support of the answer. To be timely, a written answer must be submitted no more than 30 days after the date of the notice of proposed action.

(b) Agency's answer. An employing agency may also answer the notice of proposed action. The time limit for filing such an answer is 30 days from the date of the notice. In reaching a decision, OPM will consider any answer the agency makes.

§ 731.304 Decision.

(a) The OPM Director, or designee, will make the final decision as to whether to take a suitability action. In cases where the Director delegates decision-making authority to subordinate employees, there must be appropriate independence between the OPM employee authorized to propose the suitability action and the employee authorized to make the final decision regarding such suitability action. The OPM official authorized to make the final decision may not consult with, receive advice from, or communicate with the OPM employee who proposed the suitability action concerning the merits of the proposed action, except on notice to the respondent and as part of the record. The OPM official authorized to make the final decision is also prohibited from ex parte communications consistent with the requirements of 5 U.S.C. 557(d).

(b) If the final decision is that a suitability action shall be taken, the OPM Director or designee will instruct the agency to remove the individual or process a different suitability action. The decision regarding the final suitability action must be in writing, be dated, and inform the respondent of the reasons for the decision and that an unfavorable decision may be appealed in accordance with subpart E of this part. If the decision requires removal, the employing agency must remove the appointee or employee from the rolls within 5 workdays of receipt of OPM's final decision.

Subpart D—Agency Suitability Action Procedures for the Competitive Service or Career Senior Executive Service

§ 731.401 Scope.

This subpart covers agency-initiated suitability actions against an applicant or appointee.

§ 731.402 Notice of proposed action.

(a) The agency must notify the applicant or appointee (hereinafter, the “respondent”) in writing of the proposed action, the charges against the respondent, and the availability for review, upon request, of the materials relied upon. The notice must set forth the specific reasons for the proposed action and state that the respondent has the right to answer the notice in writing. The notice must further inform the respondent of the time limit for the answer as well as the address to which such answer must be delivered.

(b) The notice must inform the respondent that he or she may be represented by a representative of the respondent's choice and that if the respondent wishes to have such a representative, the respondent must designate the representative in writing.

(c) The agency must serve the notice of proposed action upon the respondent by mail, secure email, or hand delivery no less than 30 days prior to the effective date of the proposed action to the respondent's last known residence or duty station.

(d) If the respondent is employed in a position covered by this part on the date the notice is served, the respondent is entitled to be retained in a pay status during the notice period.

§ 731.403 Answer.

A respondent may answer the charges in writing and furnish documentation and/or affidavits in support of the answer. To be timely, a written answer must be submitted no more than 30 days after the date of the notice of proposed action.

§ 731.404 Decision.

(a) The agency head, or designee, makes the final decision as to whether to take a suitability action. In cases where the agency head delegates decision-making authority to subordinate employees, there must be appropriate independence between the employee authorized to propose the suitability action and the employee authorized to make the final decision regarding such suitability action. The official authorized to make the final decision may not consult with, receive advice from, or communicate with the employee who proposed the suitability action concerning the merits of the proposed action, except on notice to the respondent and as part of the record. The official authorized to make the final decision is also prohibited from ex parte communications consistent with the requirements of 5 U.S.C. 557(d).

(b) The decision regarding the final action must be in writing, be dated, and inform the respondent of the reasons for the decision and that an unfavorable decision may be appealed in accordance with subpart E of this part. If the decision requires removal, the employing agency must remove the appointee from the rolls within 5 workdays of the agency's decision.

Subpart E—Suitability Action Appeals

§ 731.501 Right to appeal.

(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.

§ 731.502 Procedures for submitting appeals.

(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.

§ 731.503 Form and content of suitability action appeals and agency response.

(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.

§ 731.504 Appellant representatives.

(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.

§ 731.505 Adjudication of appeals.

(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 557 applicable to an appeal under this subpart except to the extent those provisions are independently required by law or expressly incorporated in this part.

(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.

§ 731.506 Sanctions and protective orders.

(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.

§ 731.507 Requests for reconsideration of an initial decision.

(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.

§ 731.508 Review by the OPM Director.

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).

§ 731.509 Final decision.

(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 Privacy Act, and other applicable law. 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.