N OTE : This order is nonprecedential.



# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

Elaine D. Kaplan

, ACTING D IRECTOR, OFFICE OF PERSONNEL MANAGEMENT, Petitioner,

v.

TONY D. HOPPER, Respondent

,

A ND

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.

______________________

O N PETITION

______________________

Before L OURIE

, O’M ALLEY

, and R EYNA Circuit Judges

.
O’M ALLEY

, Circuit Judge

.
O R D E R Case: 13-145 Document: 18 Page: 1 Filed: 09/18/2013KAPLAN v. HOPPER 2

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 Dire ctor moves unopposed for an extension of time to file his reply and replies.

Mr. Hopper was hired by the Social Security Admi nistration (“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 prev ious position when, in fact, he had been fired twice. Fi fteen months after Mr. Hop per began work, OPM determined that he was unsuitable for Federal emplo yment. 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 Man agement , the admini strative 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 su bchapter agai nst an employee only for such cause as will promote the efficiency of the service, ” 5 U.S.C . § 75l3(a),

and the B oard 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 act ions is a “ remo val. ” 5 U.S.C. § 7512(1).

Applying Chapter 75, the administrative judge su stained the charge of “ material, intentional false stat ement, or deception or fraud in examination or appointment ,” finding that Mr. Hopper knowingly su pplied 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: 09/18/2013KAPLAN v. HOPPER 3

Mr. Hopper for his falsification. As a resul t, the admini strative judge mitigated Mr. Hopper's removal, cancell ation eligibilities , and three

- year bar to a letter of reprimand, citing the Board’s purported authority over Chapter 75 “removals.”

OPM petitione d the full B oard for review, and the D irector of O PM intervened. The Board denied O PM's petition and affirmed the decision of the administrative judge. Reaffirming Aguzie , the B oard concluded that it is not bound by O PM's suitability regulations, which treat suitability actions by O PM as disti nct from adverse actions initiated by agencies and prohibit B oard review of

the reasonableness of O PM's sele cted suitability action if

the B oard has sustained O PM's charges. See

5 C.F.R. §§ 731.203(t), 731.501, 752.401(b)(10 ). T he B oard concluded that, whe n the suitability act ion is a directed removal, the B oard may review it as an adverse action pursuant to Chapter 75 of Title 5. Finding n o ambiguity in Chapter 75, the B oard held that O PM's regulations are contrary to the plain language of the statute. A dditiona lly, t he B oard affirmed the administrative judge ’s concl usion that the B oard possessed authority to miti gate not only Mr. Hopper’ s removal, but also cancellation of his employment eli gibilities and his federal service bar as a

“ unified penalty. ” T his 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 invalidat ing and enjoin ing OPM from enforcing its suitability regulat ions 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 Case: 13-145 Document: 18 Page: 3 Filed: 09/18/2013KAPLAN v. HOPPER 4

the government’s ability to safeguard the public trust and to protect the integrity of the civil se rvice.

This court must independently determine whether an exercise of our jurisdiction is warranted. Devine v. Sutermeister, 724 F.2d 1558, 1562 (Fed. Cir. 1983) . W hen 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 13 68 (Fed. Cir. 1988)

. Here, the Board determined that an OPM

- directed suit ability 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 suit able for Federal employment. We conclude that
OPM has shown the necessary impact and that our juri sdiction is warranted.

Upon consideration thereof,

I T I S O RDERED T HAT :

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

(2) OPM’s petition is granted.

(3) The r evised official caption is reflected in the o rder.

F OR T HE C OURT

/s/ Daniel E. O’Toole

Daniel E. O’Toole

Clerk

s25 Case: 13-145 Document: 18 Page: 4 Filed: 09/18/2013