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New 5-Day Suitability Rule Could Fast-Track Federal Removals

due process rights federal employment mindfulness at work mspb appeals opm suitability rule Jun 09, 2025
 

A March 2025 OPM memo and a June 3 draft rule introduce a drastic shift: federal employees—even career SES and veterans—can now be declared "unsuitable" and removed within five business days. Unlike traditional Chapter 75 adverse action procedures that provide at least 30 days’ notice and allow response time, this rule allows OPM to sidestep core civil service protections.

The mechanism? OPM centralizes these cases and has agencies serve the pink slip—no internal proposal, no meaningful notice, and no guaranteed review by the Merit Systems Protection Board (MSPB). This fast-track process introduces not only speed but substantial legal ambiguity.

 

Why Attorneys Are Sounding the Alarm

This rule expands the use of 5 C.F.R. Part 731, historically meant for applicants, not current employees. That creates serious legal friction. Discipline is supposed to run through 5 U.S.C. § 7513, which ensures due process, including a response period. The five-day timeline may violate your constitutional Fifth Amendment property interest in continued federal employment.

Additionally, by bypassing the MSPB and the Office of Special Counsel, this new approach may trigger lawsuits under the Administrative Procedure Act and theories of ultra vires (i.e., acting beyond legal authority). Legal challenges are almost certain once this rule becomes final.

 

What to Do If You Receive a Suitability Letter

Time is your enemy. You have five business days to respond, and delays—especially from HR—won’t stop the clock. Here’s your immediate checklist:

  • Request the evidence file in writing immediately.

  • Call a federal employment attorney or your union rep the same day.

  • Track deadlines—every hour matters.

Missing that window can mean a default removal with little to no appeal rights.

 

How to Stay Off the Suitability Radar

While the legal fight unfolds, proactive steps can help reduce your risk:

  • Log telework and time accurately. Avoid AWOL or leave mischarges.

  • Keep your finances clean. File taxes on time, resolve delinquent debts, and monitor your credit.

  • Avoid form errors. Misstatements—even unintentional—can be treated as falsification.

  • Stay clear on drug and alcohol rules. Document prescriptions and seek EAP support early.

  • Follow cybersecurity protocols. No sideloading, and never move sensitive data to personal devices.

  • Mind your social media. No political activity on duty, and no harassment. Screenshots last forever.

  • Cooperate with IG/OIG. Refusal to testify can itself become a suitability issue.

  • Keep a digital folder of performance records, trainings, awards, and commendations. These can support a future defense.

 

Bottom Line: Preparation Beats Panic

This suitability rule is unprecedented—but not unstoppable. Legal advocacy will challenge it. In the meantime, protect yourself by staying informed and documenting everything.

 

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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