OPM finalized rule ending independent MSPB, Federal Circuit review of suitability firings for ~1M workers

On August 3, 2026, the U.S. Office of Personnel Management published a final rule titled "Suitability Action Appeals" in the Federal Register, amending 5 CFR part 731 subpart E to remove the Merit Systems Protection Board as the adjudicator of suitability-action appeals and replace it with OPM's own internal appeal process, reviewable by the OPM director. The rule takes effect September 2, 2026, and applies to suitability actions -- including removal, debarment, and cancellation of eligibility -- against applicants, appointees, and employees across the competitive service and career Senior Executive Service. Under the new process, appeals are handled by OPM's Office of Merit System Accountability and Compliance rather than the MSPB, and employees generally lose the ability to appeal a final decision to the U.S. Court of Appeals for the Federal Circuit, which previously heard appeals from MSPB rulings.

The appeals rule follows a separate final rule, also issued by OPM and effective July 30, 2026, that for the first time extended suitability actions -- a vetting process historically used only to screen prospective hires -- to conduct by employees already on the federal payroll. That rule lets OPM or an employing agency remove a current employee for post- appointment misconduct, including untimely tax filings, refusing to sign a nondisclosure agreement, or the negligent loss of government equipment, outside the Chapter 75 adverse-action process most federal removals have used since the Civil Service Reform Act of 1978. OPM's own rule text confirms the process gives an employee facing suitability removal the right to review the evidence and respond in writing, but not an oral hearing, and the agency has projected the change will reclassify roughly half of federal employee removals government-wide -- previously handled through Chapter 75, which carries a right to appeal to the MSPB -- as suitability actions instead.

Together, the two rules let OPM initiate a suitability action against a sitting federal employee, set the substantive standard the action is judged against, and, starting September 2, adjudicate the appeal of its own finding -- consolidating functions the 1978 reform act divided between an employing agency and an independent board specifically so no single office would perform all three roles for the roughly two million employees in the competitive service and SES.

Updates

2026-08-24 — Seven federal employee unions sued OPM to strike down both rules [5]

The American Federation of Government Employees, AFSCME, two smaller national unions, and four Bay Area AFGE locals sued OPM in the Northern District of California, seeking to strike down both the July 30 and August 3 suitability rules. The unions argued Congress never granted OPM the authority the rules claim, and that the Civil Service Reform Act of 1978 requires agencies to use the Chapter 75 disciplinary process -- including independent MSPB and Federal Circuit review -- to address post-appointment conduct.