The Merit Systems Protection Board recently found the Office
of Personnel Management in compliance with an administrative
judge’s order canceling a negative suitability determination
for a candidate seeking employment as a federal
investigator. When OPM passed-over the preference eligible
candidate, the second highest rated applicant for the
position, the applicant appealed. Though the administrative
judge found that the agency proved the negative suitability
determination, the judge found OPM failed to prove that
the applicant’s non-hire would promote the agency’s
efficiency and ordered the agency to cancel the negative
suitability rating and restore the applicant to all
appropriate eligibility lists for employment. The applicant
then filed a petition for enforcement of the order
asserting that he had a right to be specifically restored
to the list of candidates for the investigator position,
and that OPM had no right to inform any other agency of its
negative suitability determination. OPM challenged the
decision.
In finding OPM in compliance with the order even though the
applicant was not restored to the list of candidates for
the investigator position, the MSPB found that because OPM
exercises discretion in hiring decisions, the Board does
not generally order such specific relief. Because the
agency restored the applicant to other lists he was
eligible for, the Board sustained the agency’s action.
In addition, in rejecting the applicant’s contention that
OPM may not share negative suitability information with
other agencies, the MSPB found that OPM is not precluded
from maintaining and transmitting such information to
agencies that consider the applicant for other positions.
The full text of the decision may be found here:
