Right to appeal.

(a) Right of appeal. An applicant, appointee, or employee in the competitive service or career Senior Executive Service, as those terms are used in this part, may appeal to OPM a suitability action taken against the appellant because of an unfavorable suitability determination. (b) Burden of proof. (1) The appellant bears the burden to demonstrate, by a preponderance of the evidence: (i) The timeliness of the written appeal; (ii) That OPM possesses jurisdiction over the appeal; and (iii) If the appellant challenges the suitability action based on improper procedure under paragraph (c)(2) of this section, that the responsible agency failed to provide one or more of the procedural protections identified in paragraph (c)(2) of this section. (2) If the appellant contests the unfavorable suitability determination under paragraph (c)(1) of this section, and after the appellant establishes timeliness and jurisdiction, the responsible agency bears the burden to establish, by a preponderance of the evidence, the charge or charges supporting the unfavorable suitability determination and the substantive propriety of the suitability action taken. This paragraph does not shift to the responsible agency the appellant's burden under paragraph (b)(1)(iii) of this section to demonstrate improper procedure. (c) Appealable issues —(1) Unfavorable suitability determination. The appellant may contest the determination that he or she is unsuitable for Federal employment based on the specific factors found at § 731.202(b) provided that the unfavorable suitability determination resulted in a suitability action as defined at § 731.101(a). (2) Improper procedure. An appellant who has been subject to a suitability action may challenge whether the responsible agency failed to provide: (i) Advance written notice stating the charge(s) and specific reason(s) for the proposed action and notifying the appellant of the right to answer the notice in writing and to review, upon request, the materials relied upon; (ii) Notice of the right to be represented by a representative chosen by the appellant; (iii) A minimum of 30 calendar days from the date of the notice of proposed action to file a written response and furnish documentation; or (iv) A written decision delivered to the appellant that explains the decision and the procedures for appealing the decision. (d) Nonappealable issues. An applicant, appointee, or employee may not appeal an unfavorable suitability determination that does not result in a suitability action as those actions are defined at § 731.101(a). (e) Exclusive appeal procedure. The procedures in this subpart are the sole means of appealing a suitability action under this part, but do not otherwise preclude an applicant, appointee, or employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, Federal Labor Relations Authority, an Inspector General, Merit Systems Protection Board, the Department of Labor's Veterans' Employment and Training Service, or the Office of Special Counsel. A party cannot obtain judicial review of a decision under this subpart.