Generally, an unsuccessful candidate for a federal government job has no right to appeal a non-selection – unless he or she feels that the basis for the non-selection was based on a discriminatory motive (age, sex, disability, race, national origin, etc.)

However, if an Agency makes a suitability determination – whether or not your character or conduct is such that employing or continuing to employ you would adversely affect the integrity or efficiency of the service, OPM has provided that the MSPB has jurisdiction. See, 5 C.F.R. § 731.101, 731.201, 731.501.This, of-course, applies to any suitability determination made during your civil service, but seems to most commonly occur in the early year/years, while your background and security are being checked and evaluated. In 2008, OPM removed the phrase “denial of appointment” from regulations defining what a suitability action is, and whether the MSPB has jurisdiction. Here are some factors that might be relied upon in rendering a negative suitability determination:

a) falsification, deception or fraud in the examination process

b) misconduct or negligence in employment;

c) conduct that reflects negatively on the efficiency of the service

An individual employee (or applicant who has accepted a position pending a suitability determination, may appeal a negative suitability determination to the MSPB.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

Before taking any action discussed in this post, you should consult with your attorney – or an attorney – to determine if that course of action is appropriate for you. Every case is different, and what’s discussed in this post may not be right for you under the facts and law of your case.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about an Agency’s negative suitability determination, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.