NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

Elaine D. Kaplan, ACTING DIRECTOR, OFFICE OF 

PERSONNEL MANAGEMENT,

Petitioner,

v.

TONY D. HOPPER,

Respondent, 

AND

MERIT SYSTEMS PROTECTION BOARD, 

Respondent.

______________________ 

Miscellaneous Docket No. 145

______________________ 

On Petition for Permission to Appeal pursuant to 28 

U.S.C. § 1292(b) from the Merit Systems Protection Board 

in No. CH0731090798-I-3. 

______________________ 

ON PETITION

______________________ 

Before LOURIE, O’MALLEY, and REYNA Circuit Judges. 

O’MALLEY, Circuit Judge. 

O R D E R

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2 KAPLAN v. HOPPER

The Director of the Office of Personnel Management 

(“OPM”) petitions for review of a final order of the Merit 

Systems Protection Board (“Board”) pursuant to 

5 U.S.C. § 7703(d). Tony D. Hopper opposes. The Director moves unopposed for an extension of time to file his 

reply and replies.

Mr. Hopper was hired by the Social Security Administration (“SSA”) subject to a favorable suitability determination. OPM’s investigation revealed that Mr. Hopper 

intentionally falsified his application for employment by 

claiming that he had never been terminated from a previous position when, in fact, he had been fired twice. Fifteen months after Mr. Hopper began work, OPM 

determined that he was unsuitable for Federal employment. OPM directed SSA to remove Mr. Hopper and 

barred him from Federal employment for three years. 

Mr. Hopper appealed to the Board. Relying upon 

Aguzie v. Office of Personnel Management, the administrative judge concluded that the scope of the Board’s 

review is not government by OPM’s suitability regulations 

but instead by Chapter 75 of Title 5. Pursuant to Chapter 

75, an “agency may take an action covered by this subchapter against an employee only for such cause as will 

promote the efficiency of the service,” 5 U.S.C. § 75l3(a), 

and the Board may review the factual basis for the action 

and mitigate the action. 5 U.S.C. §§ 770l(b)(3), (c), 

7513(d). One of the covered adverse actions is a “removal.” 5 U.S.C. § 7512(1). 

Applying Chapter 75, the administrative judge sustained the charge of “material, intentional false statement, or deception or fraud in examination or

appointment,” finding that Mr. Hopper knowingly supplied incorrect information on his employment application 

with the intention of deceiving or defrauding the agency. 

The administrative judge also noted Mr. Hopper’s SSA 

supervisor’s testimony that he would not have removed 

Case: 13-145 Document: 18 Page: 2 Filed: 09/18/2013
KAPLAN v. HOPPER 3 

Mr. Hopper for his falsification. As a result, the administrative judge mitigated Mr. Hopper's removal, cancellation eligibilities, and three-year bar to a letter of 

reprimand, citing the Board’s purported authority over 

Chapter 75 “removals.” 

OPM petitioned the full Board for review, and the Director of OPM intervened. The Board denied OPM's 

petition and affirmed the decision of the administrative 

judge. Reaffirming Aguzie, the Board concluded that it is

not bound by OPM's suitability regulations, which treat 

suitability actions by OPM as distinct from adverse 

actions initiated by agencies and prohibit Board review of

the reasonableness of OPM's selected suitability action if 

the Board has sustained OPM's charges. See

5 C.F.R. §§ 731.203(t), 731.501, 752.401(b)(10). The Board 

concluded that, when the suitability action is a directed 

removal, the Board may review it as an adverse action 

pursuant to Chapter 75 of Title 5. Finding no ambiguity 

in Chapter 75, the Board held that OPM's regulations are 

contrary to the plain language of the statute. Additionally, the Board affirmed the administrative judge’s conclusion that the Board possessed authority to mitigate not 

only Mr. Hopper’s removal, but also cancellation of his 

employment eligibilities and his federal service bar as a 

“unified penalty.” This petition for review followed. 

Pursuant to 5 U.S.C. § 7703(d), OPM may seek review 

of a Board decision when it determines that the Board 

erred in interpreting a civil service law, rule or regulation 

and that the Board’s decision will have a substantial 

impact on the administration of the civil service. OPM 

asserts that the Board’s invalidating and enjoining OPM 

from enforcing its suitability regulations is contrary to 

this court’s precedent recognizing OPM’s authority to 

define the scope of review in suitability cases, usurps 

OPM’s Presidentially-mandated authority, compromises 

government-wide uniformity and fairness, and threatens 

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4 KAPLAN v. HOPPER

the government’s ability to safeguard the public trust and 

to protect the integrity of the civil service.

This court must independently determine whether an 

exercise of our jurisdiction is warranted. Devine v. 

Sutermeister, 724 F.2d 1558, 1562 (Fed. Cir. 1983). When 

the interpretation of a statutory or regulatory provision is 

at issue, it is particularly appropriate to grant an OPM 

petition for review. See, e.g., King v. Hillen, 21 F.3d 1572 

(Fed. Cir. 1994); Brook v. Corrado, 999 F.2d 523 (Fed. Cir. 

1993); Horner v. Schuck, 843 F.2d 1368 (Fed. Cir. 1988). 

Here, the Board determined that an OPM-directed suitability action is subject to full review under Chapter 75 of 

Title 5, including review and modification of the ultimate 

action taken upon a determination that an employee is 

not suitable for Federal employment. We conclude that 

OPM has shown the necessary impact and that our jurisdiction is warranted. 

Upon consideration thereof,

IT IS ORDERED THAT: 

(1) The motion for an extension of time is granted. 

(2) OPM’s petition is granted.

(3) The revised official caption is reflected in the order.

 FOR THE COURT

 /s/ Daniel E. O’Toole

 Daniel E. O’Toole

 Clerk

s25

Case: 13-145 Document: 18 Page: 4 Filed: 09/18/2013