Four Unions Sue OPM Over the Rule That Reroutes Removals — and Their Appeals — to OPM

OPM's new suitability rule could reroute roughly half of all federal misconduct removals through OPM itself — and that figure is OPM's own estimate, published in the Federal Register. Agencies remove about 2,400 employees a year for misconduct, and OPM estimates that over 1,200 of those could now run through OPM's suitability process instead of the agency's ordinary disciplinary process. On August 24, four national unions sued OPM to stop it.

What Changed on July 30

For decades, suitability worked like a background check — something that happened before you got hired. OPM's new rule, effective July 30, turns it into something else. OPM gave itself sole jurisdiction over suitability actions against current employees for on-the-job conduct. Not your agency — OPM. And if OPM orders your removal, your agency has five business days to carry it out.

Chapter 75 vs. Part 731: Two Very Different Letters

Chapter 75 of Title 5 — the adverse-action process Congress wrote — gives you notice, a written and an oral reply, the right to representation, and an appeal to an independent board: the MSPB. The suitability route under 5 C.F.R. Part 731 has no oral reply. And soon, no Board at all.

The Timeline Behind the Appeals Change

Watch the sequence. On February 6, OPM proposed moving suitability appeals out of the MSPB — to OPM itself. On June 30, federal employees warned, in comments on the suitability rule, that they were losing that appeal. OPM's printed answer was that it proposed no changes to appeal rights "in this rulemaking." Catch the move? In this rulemaking. The change was sitting in the other one. On August 3, OPM finalized it: appeals of OPM's suitability removals now go to OPM, effective September 2. One important detail from the rule itself: appeals filed with the MSPB before September 2 are not covered by the change.

Write the rule. Take the action. Grade your own homework. The unions' complaint — 26 pages, filed in the Northern District of California on August 24 — needed one sentence to sum it up: "It is hard to imagine a scheme that is more contrary to Congress' design."

The receipts: OPM's half-of-removals estimate appears at 91 Fed. Reg. 39361, 39376 (June 30, 2026); the appeals change is at 91 Fed. Reg. 49034 (Aug. 3, 2026); the lawsuit is AFGE v. OPM, N.D. Cal., filed August 24, 2026.

What Federal Employees Should Do Now

Bottom line, up front: there is about to be a great deal of litigation over suitability. Many agencies will not try to push the boundaries of the law — but some will. So know which letter you are holding.

A Chapter 75 proposal from your agency still carries reply rights and a Board appeal. A suitability notice under Part 731 runs on short deadlines — and after September 2, its appeal goes to OPM, not the Board. If one lands: talk to your union representative first if you have one, and get representation fast. 

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.