UNITED STATES OF AME RICA

MERIT SYSTEMS PROTEC TION BOARD

2015 MSPB 36

Docket No. PH

- 0752

- 13

- 0236

- I

- 1



### Paul D. Jonson,

Appellant,

v.

Federal Deposit Insurance Corporation,

Agency.

May 4 , 2015

Paul J. Adams , Esquire, Brockton, Massachusetts, for the appellant.

Eric S. Gold , Arlington, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The Federal Deposit Insurance Corporation (FDIC) has filed a petition for

review of the initial decision, which r eversed the appellant’s removal. For the

reasons discussed below, w e GRANT the petition for review, VACATE the initial

decision, and REMAND the appeal to the regional office for further adjudication

in accordance with this Opinion and Order

.

BACKGROUND

¶2 FD IC removed the appellant from his position as Case Manager for conduct

prohibited by its regulations at 12 C.F.R. P art 336, S ubpart B, concerning

minimum standards of fitness for employment (the minimum fitness regulations).2

Jonson v. Federal Deposit Insurance Corporation

, 121 M.S.P.R. 56

, ¶ 2 (2014)

( Jonson I ). The basis of the removal was the appellant’s alleged failure to satisfy

eight separate debts to FDIC

- insured i nstitution s. Id.

, ¶ 2; Initial Appeal File

( IAF )

, Tab 4 at 125

- 26 of 129. T he agency found that this conduct violated the

prohibition in the minimum fitness regulations against “a pattern or practice of

defalcation .” Jonson I

, 121 M.S.P.R. 56

, ¶ 2 ; 12 C.F.R. § 336.5 (a)(3). A pattern

or practice of defalcation is defined in the regulations, in pertinent part, as “[a]

history of financial irresponsibility with regard to debts owed to insured

depository institutions which are in default in excess of $50,000 in the

aggregate.” 12 C.F.R. § 336.3 (i)(1). The regulations provide that employees who

are not in compliance “shall be terminated.” 12 C.F.R. § 336.8 (a).

¶3 This is the second time we have considered the appellant’s removal. T he

administrative judge previously certified the following rulings for interlocutory

review :

1. Pursuant to the Resolution Trust Corporation Completion Act

(RTCCA), 1 FDIC was authorized by Congress to promulgate

minimum standards for employment, which are set forth in 12 C.F.R.

§ 336.5 ;

2. FDIC was required to obtain concurrence from the Office of

Government Ethics (OGE) before enacting 12 C.F.R. Part 336 ;

3. FDIC defined the word “defalcation” in 12 C.F.R. Part 336 more broadly than is utilized in the Bankruptcy Code;

4. FDIC was permitted to utilize a more expansive definition of the

word “defalcation”;

5. If FDIC establishes by preponderant evidence that the appellant

violated 12 C.F.R. Part 336, such a violation would not necessarily

subject him to mandat ory removal as prescribed in 12 C.F.R.

§ 336.8 ; and

1 At issue is section 19 of the RTCCA, Pub. L. No. 103

- 204, § 19, 107 Stat. 2369,

2402

- 04 (1993) (codified as amended at 12 U.S.C. § 1822 (f)).3

6. The Board has jurisdiction over the appeal of the adverse

employment action suffered by the appellant, including a

determination regarding the reasonableness of the penalty in light of

the criteria and exceptions set forth in 12 C.F.R. Part 336.

Jonson I

, 121 M.S.P.R. 56

, ¶¶ 1, 3.

¶4 Previously, o n interlocutory review, we affirmed the administrative judge’s

rulings regarding issues 1, 2, and 6, reversed the appellant’s removal

, and

returned the appeal to the regional office for further adjudication of his prohibited

personnel practices claims. 2 Id.

, ¶¶ 1, 5, 18

- 20. The reversal was based on the

determination that the removal was “not in accordance with law” because the

minimum fitness regulations on which it was based were promulgated without

the approval of OGE

, as required by section 1822(f)(2) of the RTCCA

. Jonson

I

, 121 M.S.P.R. 56

, ¶¶ 16

- 17.

¶5 After the appeal was returned to the administrative judge, the appellant

withdrew his prohibited personnel practices claims with prejudice. IAF

, Tab 32

at 4. Therefore, the administrative judge issued an initial decision finding these

claims moot and adopting the Board’s reversal of the appellant’s removal. IAF,

Tab 34, Initial Decision (ID) at 4

- 5.

¶6 FDIC has filed a petition for review, arguing that we exceeded the scope of

our authority by invalidating the mini mum fitness regulations and that our finding

that OGE approval was required for the regulations was incorrect

. Petition for

Review ( PFR ) File, Tab 1 at 4

- 5

. 3 The appellant has not responded to the petition

2 Member Robbins dissenting.

3 FDIC has provided a certification of compliance with the interim relief order in the

initial decision. PFR File, Tab 1 at 7, 29; see ID at 6

- 7 (ordering interim relief); see

also 5 C.F.R. § 1201.116 (a) (an agency’s petition for review filed in a case where the

appellant was th e prevailing party and was granted interim relief must be accompanied

by a certification of compliance with the interim relief order). The appellant has not

challenged the certification, and therefore we decline to review it further here. Cf.

Guillebeau v. Department of the Navy

, 362 F.3d 1329 , 1332

- 34 (Fed. Cir. 2004)

(interpreting 5 C.F.R. § 1201.116 (e), identified by its previous location at4

for review. We disagree with FDIC regarding the first issue. However, in light

of an OGE declaration provided by FDIC after we issued Jonson I

, we now find

that OGE concurrence was not required prior to the promulgation of the minimum

fitness regulations

. See id

. at 28 (containing the OGE declaration); IAF, Tab 23

at 30 (same). Therefore, we REVERSE our prior ruling regarding issue 2, above.

In light of this finding, we now address certified issues 3

, 4, and 5, which we

previously did not reach

. Jonson I

, 121 M.S.P.R. 56

, ¶¶ 1, 5.

ANALYSIS

The Board acted within its authority in declining to follow the minimum fitness

regulations.

¶7 FDIC argues that we exceeded the scope of our authority when we

invalidated its minimum fitness regulations. PFR File, Tab 1 at 8

- 11. According

to FDIC, the Board’s authority is limited to review of Office of Personnel

Management (OPM) regulations, as provided in 5 U.S.C. § 1204 (f). PFR File

,

Tab 1 at 8

- 9 ; see IAF, Tab 13 at 7 (making this argument below)

. 4 We disagree

with FDIC that we invalidated its minimum fitness regulations. We also find

unpersuasive FDIC’s reliance on decisions that address the scope of the Board’s

original jurisdiction under section 1204(f), because this appeal arises under the

Board’s appellate jurisdiction.

¶8 In Jonson I

, we found that the adverse action was taken pursuant to

regulations that FDIC promulgated without concurrence from OGE. Jonson

I

, 121 M.S.P.R. 56

, ¶¶ 10, 16

. Therefore, we found the regulations to be “no t in

accordan ce with law.” Id.

, ¶ 17 (citing 5 U.S.C. § 7701 (c)(2)(C) (providing that

section 1201.115(b)(4), as providing that dismissal for failure to comply with interim

relief is discretionary).

4 Because we did not previously address this argument in Jonson I , we do so now.5

an adverse action may not be sustained if it is “not in accordance with law” ) )

.

We did not make a finding that the regulations were invalid. 5

¶9 FDIC argues that our “authority to review regulations is limited to that

which is provided by 5 U.S.C. § 1204 (f).” PFR File, Tab 1 at 8

- 11 ( citing Latham

v. U.S. Postal Service

, 117 M.S.P.R. 400 (2012); Thompson v. Office of Personnel

Management

, 87 M.S.P.R. 184 (2000) ; Ramsey v. Office of Personnel

Management

, 87 M.S.P.R. 98 (2000) )

. The Board has two types of jurisdiction,

original and appellate. 5 C.F.R. § 1201.1

. The Board’s original jurisdiction

includes, in pertinent part, review of rules and regulations issued by OPM to

declare such provisions invalid on their face or invalidly implemented by any

agency. 5 U.S.C. § 1204 (a)(4), (f)(2); Thompson

, 87 M.S.P.R. 184

, ¶ 7; 5 C.F.R.

§ 1203.1

. In Thompson

, the Board found that its original jurisdiction does not

include the authority to deter mine whether OPM followed the proper procedures

in issuing its regulations. 87 M.S.P.R. 184

, ¶ 8 (citing 5 U.S.C. § 1204 ). In

contrast, in the instant appeal, our authority arises from our appellate jurisdiction

under chapter 7 5 of Title 5. 5 U.S.C. § 7512 (1) (including removals among

adverse a ctio ns appealable to the Board) ; Samble v. Department of

Defense

, 98 M.S.P.R. 502

, ¶ 11 (2005) (finding that the involuntary separation of

an appellant who met the statutory definition of employee with adverse action

appeal rights fell within the Board’s appellate jurisdiction); 5 C.F.R.

§ 1201.3 (a)(1) (listing adverse actions as falling within the Board’s appellate

jurisdiction). We find un persuasive FDIC’s citation to Thompson to suggest that

5 Although we stated in Jonson I that the minimum fitness regulations were “invalidly

promulgated,” we did not intend to infer by that statement that we were invalidating the

r egulations. Jonson I

, 121 M.S.P.R. 56

, ¶ 17.6

we cannot review whether an agency other than OPM properly promulgated

regulations in determining whether to sustain an adverse action. 6

¶10 W e also are not persuaded by FDIC’s arguments that the Board lacks

authority to invalidate regulations under the Administrative Procedures Act

(APA). PFR File, Tab 1 at 9

- 11 & n.3 (citing Latham

, 117 M.S.P.R. 400

,

¶¶ 18

- 19 ( holding that the Board does not have jurisdiction under the APA to

review OPM regulations to determin e whether they exceed the statutory grant of

a uthority, but going on to discuss the Board’s authority to address whether a

regulation improperly expands Board jurisdiction because the Board’s ju risdiction

is always before it)); see 5 U.S.C. § 706 (2)(C) (granting reviewing courts the

authority under the APA to “hold unlawful and set aside agency action

. . . in

excess of statutory

. . . authority”). We did not review the minimum fitness

regulations under the APA and did not invalidate them in any event. Rather, we

declined to follow them as they concerned this adverse action appeal. Jonson

I

, 121 M.S.P.R. 56

, ¶¶ 9, 17.

FDIC was not required to obtain concurrence from OGE for its minimum fitness

regulations

.

¶11 After we issued Jonson I

, FDIC submitted a declaration from OGE stating

that FDIC was not required to obtain concurrence from OGE prior to

promulgating the minimum fitness regulations. 7 PFR File, Tab 1 at 7, 28

. As a

6 We are likewise unpersuaded by the agency’s citation to Ramsey . PFR File, Tab 1 at 9

(citing Ramsey

, 87 M.S.P.R. 98 , ¶ 10 (finding that a challenge to a n OPM regulation

that merely repeated statutory language failed because the Board does not have

authority under section 1204(f) to review a statutor y provision)).

7 The agency submitted this declaration for the first time below as part of a motion for

reconsideration, which it titled a request to reopen. IAF, Tab 23 at 6, 30. The Clerk of

the Board denied the motion because reconsideration of interl ocutory decisions is not

contemplated by the Board’s regulations. See 5 C.F.R. §§ 1201.91

- .93 (containing the

Board’s regulations on int erlocutory appeals).7

matter of comity to OGE, we now find that its concurrence was not required for

the minimum fitness regulations and overrule our contrary holding in Jonson I

. 8

¶12 OGE “ provide [ s ]

, in consultation with [OPM]

, overall direction ” on the

prevention of conflicts of interest by executive agency employees. 5 U.S.C. a pp.

§ 402 (a); 5 C.F.R. § 2600.101 (a). Executive agencies in this context include

FDIC. See 5 U.S.C. § 105 (defi ning executive agency to include government

corporations ); 5 U.S.C. a pp. § 402 (a) (incorporating the definition of executive

agency from 5 U.S.C. § 105 ); 12 U.S.C. §§ 1811

- 12 (establishing FDIC and its

general structure as a government co r poration )

, 1822(f)(1) (A ) (stating that F DIC

is an agency for purposes of T itle 18) ; 31 U.S.C. § 9101 (2)(B) (refle cting that

FDIC is a “mixed

- ownership Government corporation ” ); Supplemental Standards

of Ethical Conduct for FDIC Employees, 72 Fed. Reg. 19,375, 19

, 376 (Apr. 18

,

2007) (reflecting that FDIC obtained OGE concurrence for changes to its ethics

regulations codified at 5 C.F.R. P art 3201 )

. OGE has broad oversight of

executive branch ethics, i ncluding developing rules and regulations on conflicts

8 Under the law of the case doctrine, a tribunal generally will not reconsider issues that

already have been decided in an appeal, unless there is new and material evidence

adduced at a subsequent trial, controlling authority has made a contrary decision of law,

or the prior decision was clearly erroneous and would work a manifest injustice.

O’ Connell v. Dep artment of Navy

, 73 M.S.P.R. 235 , 240 (1997)

. The doctrine “merely

expresses the practice of courts generally to refuse to reopen what has been decided,

[and is] not a limit to their power.” Messinger v. Anderson

, 225 U.S. 436 , 444 (1912);

see Mendenhall v. Barber

- Greene Co.

, 26 F.3d 1573 , 1582

- 83 (Fed. Cir. 1994)

(observing that a court’s decision to apply the law of the case doctrine is within its

discretion). Although FDIC had previously provided a lette r from OGE that opined that

“FDIC complied with the requirements of OGE’s regulatory process leading up to its

publication” of the minimum fitness regulations, the letter provided no insight into what

compliance was required or how FDIC complied. IAF, Tab 10 at 18; see Jonson I

, 121 M.S.P.R. 56

, ¶ 10 (referring to this evidence). In contrast, the new OGE

declaration states that concurrence was not required and provides an ex planation for

this conclusion. PFR File, Tab 1 at 28. In light of this declaration, we find our prior

decision in Jonson I was clearly erroneous, and therefore we do not apply the law of the

case doctrine to our finding that prior OGE concurrence was required for the minimum

fitness regulations.8

of interest ; evaluating the need for changes in agency ethics and conflict of

interest rules and regulations to make them consistent with conflict of interest

laws; and providing information on

, and promoting the understanding of

, ethical

standards in executive agencies. 9 5 U.S.C. a pp. § 402 (b)(1 ), (12 ), (14) ; 5 C.F.R.

§ 2635.105 (discussing the requirement that agencies obtain concurrence from

OGE for regulations supplementing OGE’s standards of ethical conduct for

employees of the executive branch).

¶13 The new OGE declaration responds to our Jonson I decision. PFR File,

Tab 1 at 28. The declaration states that “OGE concur rence was not required

under 12 U.S.C. § 1822 (f)(2)” for the minimum fitness regulations. PFR File,

Tab 1 at 28

. As a matter of comity and cooperation, w e defer to OGE’s

determination that FDIC was not required to obtain its approval before

promulgating the minimum fitness regulations

. Comity is the discretionary

practice of forums to recognize each other’s acts. B LACK ’ S L AW D ICTIONARY

303 (9 th ed. 2009); see Montana

- Dakota Utilities Co. v. Northwestern Public

Service Co.

, 341 U.S. 246

, 254 (1951) ( observing that it is proper for the court to

refer to an administrative forum a matter that falls within its authority bo th as a

matter of comity and to avoid conflict)

. Based on policy considerations of comity

and cooperation with the Equal Employment Opportunity Commission (EEOC) as

a co equal tribunal, t he Board has previously exercised its discretion to defer to

EEOC ’ s procedural determination s regarding whether an appellant made a valid

ele ction between the Board and equal employment opportunity processes

.

Gomez

- Burgos v. Department of Defense

, 79 M.S.P.R. 245

, ¶ 10 (1998)

(observing that the Board and EEOC are coequal in the mixed

- case process ) ; cf.

Cloutier v. U.S. Postal Service

, 89 M.S.P.R. 411

, ¶ 6 (2001) (deferring to the

9 In connection with these first two functions, OGE consults with, or seeks the

assistance of, the Attorney General and OPM. 5 U.S.C. app. § 402 (b)(1), (12).9

employing agency’s determination that a discrimination complaint was untimely)

.

This deference is based on the recognition of EEO C’s major responsibility for the

equal employment opportunity process and a desire not to frustrate EEOC’s goals

.

Dawson v. U.S. Postal Service

, 45 M.S.P.R. 194

, 197 (1990). Similarly, we find

here that OGE is primarily responsible for oversight of the ethical standards of

federal employees

. See Special Counsel v. Nichols

, 36 M.S.P.R. 445

, 455 (1988)

(recognizing that OGE is the agency primarily responsible for developing rules

and regulations pert aining to conflicts of interest and standards of conduct). Our

prior finding in Jonson I is contrary to OGE’s determination that its concurrence

in the minimum fitness regulations was not required and could create confusion.

Therefore, we find this situation one in which it is appropriate to defer.

¶14 In light of our ruling here

, we reverse our prior finding in Jonson I that

section 1822(f)(2), and not section 1822(f)(4), of the RTCCA empowers FDIC to

prescribe the conduct for which it removed the appellant

. Jonson I

, 121 M.S.P.R.

56

, ¶ 12. Section 1822(f)(2) requires FDIC to obtain OGE concurrence before

prescribing regulations that supplement the ethics and conflict of interest rules

and regulations issued by OGE. The declaration from OGE compared the

minimum fitness regulations to OGE’s own regulatory authority and concluded

that the minimum fitness regulations did not require OGE ’s approval because they

did not “modify or expand the government

- wide Standards of Ethical Conduct for

Executive Branch Employees, nor do they regulate an area reserved for

supplemental agency regulations (such as: outside activity limitations, prior

approval requirements and prohibited holding restrictions).” PFR File, Tab 1 at

28. Therefore, we conclude that FDIC was not required to promulgate the

minimum fitness regulations under sec tion 1822(f)(2).

¶15 We also agree with FDIC that our prior ruling incorrectly found that it

lacks authority under section 1822(f)(4) to regulate employee conduct. Id. at

12

- 17 ; see Jonson I

, 121 M.S.P.R. 56

, ¶ 12

. In evaluating an agency’s

construction of a statute, we look first to congressional intent. Chevron , U.S.A.,10

Inc. v. Natural Resources Defense Council, Inc.

, 467 U.S. 837

, 841

- 42 (1984).

Absent clear congressional intent, as here, we next examine whether the agency

was explicitly charged with filling in a gap left in the legislation. 10 Id. at 843

- 44.

Where, as here, we find that it was, the agency’s regulations “are given

controlling weight unless they are arbitrary, capricious, or manifestly contrary to

the statute.” Id. at 844

. Express congressional authorization to an agency to

engage in rulemaking

, and the use of the notice and comment procedures in

promulgating such rules

, are significant indicators that Chevron deference is

appropriate. Mayo Foundation for Medical Education & Resear ch v. United

States

, 562 U.S. 44

, 57

- 58 (2011).

¶16 T he text of section 1822(f)(4) pr ovides that FDIC may “prescribe

regulations

. . . for ensuring that any individual who is performing, directly or

indirectly, any function on behalf of the Corporation meets the minimum

standards of competence, experience, integrity and fitness.” 12 U.S.C.

§ 1822 (f)(4)(A). No OGE approval is required for the subject regulations.

Therefore, FDIC was charged with filling any gaps left in the statute with the

minimum fitness regulations. In promulgating the minimum fitness regulations,

FDIC relied on section 1822(f)( 4)(E)

, which requires that the minimum fitness

regulations prohibit certain behaviors

, including “a pattern or practice of

defalcation regarding obligations to insured depository institutions

. ” Minimum

10 FDIC argues that it has authority to promulgate the minimum fitness regula tions

under section 1822(f)(4) of the RTCCA because: (1) the language of that section,

supported by the legislative history, unambiguously permits it to promulgate the

regulations; (2 ) the subheadings contained in the RTCCA were borrowed from its

predeces sor statute, and therefore we erred i n relying on them to interpret section

1822(f) in our decision in Jonson I ; and (3 ) the plain text of 12 U.S.C. § 1822 (f)(4)(E)

may serve as the basis for i ts removal of the appellant. PFR File, Tab 1 at 11

- 22, 24

. In light of OGE’s declaration, we believe it is now clear that FDIC has authority to

promulgate the minimum fitness regulations under section 1822(f)(4). We find it

unnecessary, therefore, to re ach FDIC’s remaining arguments.11

Standards of Fitness for Employment w ith the Federal Deposit Insurance

Corporation, 61 Fed. Reg. 28,725

, 28,726 (June 6, 1996)

. Further, before

finalizing its regulations, FDIC sought notice and comment. Minimum Standards

of Fitness for Employees with the Federal Deposit Insurance Corporation, 61 Fed.

Reg. 5956 (Feb. 15, 1996). We find the agency’ s reliance on section 1822(f)(4)

to be appropriate, and we give its regulation s controlling weight.

FDIC is not constrained by the de finition of defalcation in the bankruptcy c ode.

¶17 In her certified rulings on issues 3 and 4, t he administrative judge found

that FDIC’s definition of defalcation in the minimum fitness regulations was

broader than the defin i tion in the b ankruptcy code, but that FDIC was permitted

to use this broader definition. IAF, Tab 12 at 6

- 7

, Tab 16 at 1

. Both the

proposed removal and removal decision relied on the minimum fitness

regulation s ’ definition of a pa ttern or practice of defalcation to include “[a]

history of financial irresponsibility with regard to debts owed to insured

depository institutions which are in default in excess of $50,000 in the

aggregate.” IAF, Tab 4 at 82, 124 of 129 ( quoting 12 C.F.R. § 336.3 (i)(1)).

Relying on the bankruptcy code, the appellant argued that this definition is too

broad because it does not requir e a fiduciary relationship. IAF, Tab 11 at 8

- 9.

The agency argued that the definition of defalcation from the bankruptcy code is

irrelevant and that its own definition in the minimum fitness regulations is

entitled to deference

. IAF, Tab 10 at 10

- 12, Tab 13 at 10. We agree

. Therefore,

we find it unnecessary to address the administrative judge’s ruling regarding

certified issue 3, and we agree with her ruling regarding certified issue 4

.

¶18 An agency has the right “to establish and enforce reasonable rules

governing the workplace.” Carosella v. U.S. Postal Service

, 816 F.2d 638

, 642

( Fed. Cir. 1987); Miller v. U.S. Postal Service

, 7 M.S.P.R. 572

, 577

- 78 (1981),

aff’d

, 712 F.2d 1006 (6 th Cir. 1983). Thus

, the Board has held that

, when an

agency charges an employee with violating its own policy or rule on sexual

harassment, it is not required to prove Title VII’s sexual harassment standards.12

Hillen v. Department of the Army

, 35 M.S.P.R. 453

, 462 (1987)

. We also have

recognized that an agency has a right to promulgate and enforce reasonable

regulations governing its employees ’ ethical conduct

. Mil ler

, 7 M.S.P.R. at

577

- 78.

¶19 The minimum fitness regulations are intended to “state the minimum

standards of fitness and integrity required” of those providing services on FDIC’s

behalf. 12 C.F.R. § 336.2 (b). The prohibition on defalcation in the regulations is

limited to “obligations to insured depository institutions,” in other words, those

banking institutions and savings associations that FDIC insures. 12 U.S.C.

§ 1813 (c)(2) (defining insured depository institutions); 12 C.F.R. §§ 336.3 (h)

(same), 336.5(a)(3) (limiting the prohibition on defalcation to insured depository

institutions). According to the agency, the purpose of the prohibition on a history

of financial irresponsibility is to preserve its integrity and credibility. PFR File,

Tab 1 at 25

- 26; see 61 Fed. Reg. at 28,727 (explaining the purposes of the

prohibition on a patt ern or practice of defalcation)

. Both the proposed removal

and removal decision relied on the minimum fitness regulation’s definition of a

pattern or practice of defalcation as “[a] history of financial irresponsibility with

regard to debts owed to insured depository institutions which are in default in

excess of $50,000 in the aggregate.” IAF, Tab 4 at 82, 124 of 129

(citing 12 C.F.R. § 336.3 (i)(1)). Given FDIC’s relationship with the institution s

that it insures, we find that the agency’s definition of a pattern or practice of

defalcation is a reasonable exercise of its right to establish workplace rules

.

¶20 In addition, we find that the agency’s prohibition on a pattern or practice of

defalcation is a valid exercise of its regulatory authority under the RTCCA. See

Chevron

, 467 U.S. at 841

- 44

. Congress specifically contemplated that the

minimum fitness regulations would prohibit individuals who “demonstrated a

pattern or practice of defalcation regarding obligations to insured depository

institutions

. . . from performing any service on behalf of [FDIC].” 12 U.S.C.

§ 1822 (f)(4)(E) (iii)

. As discussed above, FDIC provided public notice of, and13

comment on

, what are now codified as the minimum f itness r egulations. 61 Fed.

Reg. at 5956. Included in the proposed regulations was the current definition of a

pattern or practice of defalcation

. Compare i d. at 5959 (containing the definition

in the final rule), with 12 C.F.R. § 336.3 (i ) (containing the identical definition in

the minimum fitness regulations)

. The definition has been in place since 1996

.

See 61 Fed. Reg. at 28,729 (final rule) ; see also Bar n hart v. Walton

, 535 U.S.

212

, 221

- 22 (2002) ( indicating that the fact that an agency interpretation has been

longstanding weighs in favor of applying Chevron deference despite a lack of

“‘notice and comment’ rulemaking” )

. We find that FDIC’s definition of

defalcation i s not ar bitr ary or capricious, and is consistent with the RTCCA. 11

Removal is the mandatory penalty for a pattern or practice of defalcation

.

¶21 We did not reach the certified ruling in Jonson I on i ssue 5 that

, if FDIC

established by preponderant evidence that the appellant violated the minimum

fitness regulations, he would not necessarily be subject to mandatory removal.

Jonson I

, 121 M.S.P.R. 56

, ¶ 9 n.2. We do so now, finding that

, under the

RTCCA

, the only penalty available for a pattern or practice of defalcation is

removal.

¶22 T he RTCCA states that the minimum fitness regulations “shall prohibit any

person who does not meet [them] from

. . . becoming employed by [FDIC] or

otherwise performing any service for or on behalf of [FDIC].” 12 U.S.C.

§ 1822 (f)(4)(B)(ii). It also specifies that FDIC’s minimum fitness regulations

11 The agency’s definition of a pattern or practice of defalcation contains an exception

for defaults “caused by catastrophic events beyond the control of the employee such as

death, disability, illness or loss of financial s upport.” 12 C.F.R. § 336.3 (i)(3). The

appellant claimed that the illnesses of his wife and children and the 2008 collapse of the

housing mark et precipitated his indebtedness

. IAF, Tab 4 at 89

- 90 of 129

. In light of

this regulatory exception for catastrophic events , the administrative judge should

determine on remand whether the agency proved the charge of defalcation, including

whether it properly found that the appellant did not fall within this exception.14

“shall

. . . prohibit any person who has

. . . demonstrated a pat tern or practice of

defalcation regarding obligations to insured depository institutions

. . . from

performing any service on behalf of [FDIC].” 1 2 U.S.C. § 1822 (f)(4)(E)(iii).

The U.S. Court of Appeals for the Federal Circuit interpreted similar statutory

language in Delong v. Department of Health & Human Services

, 264 F.3d 1334

( Fed. Cir. 2001), to find that it required removal. At issue in Delong was

language from 25 U.S.C. § 3207

. 264 F.3d at 1340

- 41. In pertinent part, the

statute required the Secretary of Health and Human Services to prescribe

“minimum standards of character” regulations that would ensure that employees

in regular contact with Indian children had not been found guilty of certain

e num erated crimes. Id. (citing 25 U.S.C. § 3207 (a)(3), (b) )

. In rejecting the

employee’s argument that the agency was required to consider mitigating factors

prior to removing her

, the court observed that “the only way [the Department of

Health and Human Services] can ‘ensure’ that current employees meet the

minimum standards of character is to remove employees who fail to meet the

standards.” 12 Delong

, 264 F.3d at 1341; cf. James v. Tablerion

, 363 F.3d 1352

,

1355, 13 58

- 59 ( Fed. Cir. 2004) ( holding that the election of the penalty of

removal was not reviewable where the subject statute ma ndated removal for the

charged conduct and gave exclusive discretion to a specific individual within the

agency to decide whether to mitigate, and the designated official had made a

determination not to do so (relying on 26 U.S.C. § 7804 note) ).

¶23 Similarly, the statute at issue here contemplates that individuals who

engage in a pattern or practice of defalcation will not perform service on behalf of

FDIC. The only way to avoid such service is if employees who violate the

regulations are removed. FDIC has given effect to the statute by stating in the

12 The appellant argued, below, that such a mandatory penalty is not appropriate for a

charge that is not based on misconduct. IAF, Tab 11 at 10. We do not find meaningful

this cha racterization of the charged behavior.15

minimum fitness regulations that employees not in compliance with the

regulations “ shall be terminated. ” 12 C.F.R. § 336 .8 (a). A ssuming that the

agency proves both the charge and that the appellant’s removal is for such cause

as to promote the efficiency of the service by preponderant evidence

, the

administrative judge should not mitigate the penalty of removal

. 13

ORDER

¶24 For the reasons discussed above finding that the Board’s prior reversal of

the appellant’s removal was in error, we CANCEL t he order of interim relief and

REMAND this case to the regional office for further adjudication. 14

FOR THE BOARD:

______________________________ William D. Spencer

Clerk of the Board

Washington, D.C.

13 W e therefore modify our finding in Jonson I regarding issue 6 to find that the

mandatory penalty for a pattern or practice of defalcation is termination. See Jonson I

, 121 M.S.P.R. 56

, ¶¶ 6, 9

.

14 On remand, the appellant should be provided with an opportunity to reinstate his

affirmative defenses because they appear to have been withdrawn in reliance on the

Board’s decision in Jonson I . IAF, Tab 32 at 4 ; see Jonson I

, 121 M.S.P.R. 56

, ¶¶ 18

- 19.