UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE

Appellant,

v. Docket No. DC-0731-09-026^-1^

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OFFICE OF PERSONNEL '<°

MANAGEMENT, ^ 2s Ui

Agency. "^ — rn

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AMICUS BRIEF BY THE AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

The American Federation of Government Employees submits this amicus curiae

brief pursuant to the notice published by the United States Merit Systems Protection

Board ("Board") in the Federal Register on May 25,2010. 75 Fed. Reg. 29366 (May 25,

2010). The Board has asked amicus curiae to address the following legal issue: "When

the Office of Personnel Management (OPM) directs an agency to separate a tenured

employee for suitability reasons, must the Board consider a subsequent appeal under 5

CFR part 731 as contemplated therein, or should the Board instead consider the appeal

under 5 U.S.C. Chapter 75, given that the scope of a Chapter 75 appeal is broader than a

part 731 appeal and that OPM generally lacks authority to issue regulations limiting

statutory rights?" See 75 Fed. Reg. 20007 (April 16, 2010).

AFGE thanks the Board for the opportunity to submit an amicus curiae brief on

this issue. AFGE is the largest labor organization representing federal civilian

employees. Both AFGE and its members therefore have a direct interest in the Board's
decision on this issue. Most, if not all, of the federal civilian employees that AFGE

represents are subject to the OPM suitability regulations contained in 5 CFR, Part 731.

Indeed, AFGE has been opposed to the application of Part 731 to tenured employees, i.e.

those individuals who qualify as "employees" under 5 U.S.C. § 7511, since at least 2007.

In 2007, AFGE submitted comments to changes that OPM proposed for its suitability

regulations. At that time, AFGE argued that OPM should eliminate its regulations'

coverage of employees who successfully completed their probationary periods because,

'*to the extent that OPM continues to attempt to restrictively modify the statutory

protections granted to tenured federal employees and appointees, OPM acts ultra vires"

AFGE continues this argument today. Accordingly, and for the reasons discussed

below, the Board should apply 5 U.S.C. Chapter 75 when considering the appeals of

tenured federal civilian employees who have been removed from service at the direction

of OPM for suitability reasons. None of the statutes that provide the authority for OPM's

suitability regulations grant OPM the power to restrict or otherwise modify those rights

that are expressly and specifically granted to tenured employees by Chapter 75 of Title V

of the United States Code.

I. BACKGROUND

On December 7, 2009, OPM filed a brief in this matter and in the consolidated

appeals of appellants Holley C. Barnes, Jenee Ella Hunt-O'Neal and James A. Scott

("OPM Brief). Predictably, OPM defended Part 731. OPM argued: 1) that OPM's

authority to regulate suitability actions is derived from distinct statutes and Executive

Orders that pre-date Chapter 75; 2) that both OPM's and the Board's regulations
distinguish between OPM suitability removals and adverse actions taken by employing

federal agencies; 3) that Congress ratified the use of separate procedures for suitability

removals and adverse action in the Civil Service Reform Act of 1978 ("CSRA"); 4) that a

removal directed by OPM under Civil Service Rule V cannot be an adverse action

because it is not initiated by the employing agency; and 5) that the remedies of debarment

and cancellation would not be available under Chapter 75.

Summarized, OPM's arguments may be boiled down to the assertion that the

Board must apply Part 731 when considering the appeals of tenured federal civilian

employees who have been removed from service at the direction of OPM after an adverse

suitability determinations for three reasons. First, OPM asserts that the Board is bound to

apply Part 731 because OPM has the statutory authority to promulgate suitability

regulations. Second, OPM asserts that the Board is bound to apply part 731 because

OPM has exercised its statutory authority by in fact promulgating suitability regulations.

Third, the OPM asserts that the Board is bound to apply Part 731 because both the Board

and the United States Court of Appeals for the Federal Circuit ("the Federal Circuit")

have previously treated suitability removals taken under Part 731 separately from adverse

action appeals under Chapter 75. See OPM Brief at 6-8. OPM relies primarily on five

statutory provisions and Executive Order 12107 in support of these assertions. The five

statutory provisions that OPM chiefly relies on are: 5 U.S.C. § 1103, 5 U.S.C. § 1104,5

U.S.C. 1302, 5 U.S.C. § 3301, and 5 U.S.C. § 3302.

OPM then reasons that pursuant to the Federal Circuit's decision in Lovshin v.

Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985), because its regulations contained
in Part 731 are grounded in statute, the Board may not require suitability appeals to be

adjudicated as adverse action appeals under Chapter 75.

II. ARGUMENT

OPM's arguments are misguided. To begin with, and as mentioned, OPM's

assertion that its suitability regulations are firmly grounded in statutory authority fails

because none of the statutory authorities that OPM relies on as the basis for Part 731

grant OPM the power to restrict or otherwise modify rights that are expressly and

specifically granted to tenured employees by Chapter 75 and Chapter 77 of Title V of the

United States Code. Next, OPM's assertion that the Board should not apply Chapter 75

to suitability removals because OPM's and the Board's regulations distinguish between

Part 731 removals and adverse actions appeals and because Congress ratified this

separate approach when it passed the CSRA also fails. The precise question raised by the

Board has never been adjudicated, and neither Chevron deference nor stare decisis can

save regulations that conflict with plain statutory language.

Finally, OPM's reliance on Lovshin v. Dep 't of the Navy, 767 F.2d 826 (Fed. Cir.

1985), which AFGE will not discuss further, makes no sense. Lovshin dealt with an

agency* s ability to choose between two statutory choices when removing an employee for

unacceptable performance, and presupposed that the both of choices available, Chapter

75 and Chapter 43, were valid. This is plainly not the case here. Therefore, Lovshin

should not inform the Board's decision in this matter.
A. OPM Does Not Have Authoritv.to Restrict or Alter Chapter 75 or the

Board's Jurisdiction by Regulation

OPM's assertion that, "[t]he Board's sua sponte suggestion in this case that

OPM's suitability regulations appear to carve out an exception to its statutory jurisdiction

under Chapter 75 is, of course, contrary to these regulations," OPM Brief at 7, only

underscores the precise problem with OPM's argument that its suitability regulations

should triumph over Chapter 75. The core of OPM's argument is that the application of

Chapter 75, and in particular the application of 5 U.S.C. § 7513, to this matter is

inappropriate because it would be contrary to OPM's suitability regulations. This is a

specious argument because it stands a central premise of administrative jurisprudence on

its head. Specifically, it is an agency's regulations that must be consistent with statute

and not the other way around. See Chevron U.S.A., Inc., v. Natural Res. Defense

Council, Inc., 461 U.S. 837,104 S.Ct. 2778 (1984) ("Chevron").

Thus, it is to the statutes relied on by OPM that the Board must look, and not to

Part 731, in order to determine the extent of OPM's authority to govern suitability and to

determine the validity of OPM's regulations. Placing the Board's analysis into the proper

framework, the Board then should look to: 5 U.S.C. § 1103, 5 U.S.C. § 1104, 5 U.S.C.

1302, 5 U.S.C, § 3301, and 5 U.S.C. § 3302. Section 1103 details the functions of the

Director of the Office of Personnel Management, including publishing notices of

proposed rule-making in the Federal Register. 5 U.S.C. § 1103(b). Section 1104 allows,

inter alia, for the delegation of personnel management functions from the President of the

United States to the Director of OPM including authority for competitive examinations.

5U.S.C.§1104(a).
In pertinent part, section 1302 provides that, "[t]he Office of Personnel

Management, subject to rules prescribed by the Prescribed by the President under this

title for the administration of the competitive service, shall prescribe regulations for,

control, supervise, and preserve the records of, examinations for the competitive service."

5U.S.C. § 1302(a). Section3301 allows the president to prescribe regulations for the

admission of individuals into the civil service and to ascertain the fitness of applicants for

employment. 5 U.S.C. § 3301. Section 3302 echoes section 3301 by allowing the

President to prescribe rules governing the competitive service that provide for, as nearly

as conditions of good administration warrant, necessary exceptions from the competitive

service. 5 U.S.C. § 3302.

Taken together with Executive Order 12107, the authorities relied on by OPM

craft argument that OPM has the general authority to issue and enforce suitability

regulations. This is not, however, the issue raised by the Board. The central issue raised

by the Board is the extent of OPM's admitted authority to issue suitability regulations.

And, it is on this central issue raised by the Board that OPM stumbles because the

authorities cited by OPM are silent. That is, giving the language of the provisions relied

on by OPM their plain meaning they possess absolutely no indication that Congress

intended to allow OPM to override by regulation the specific rights and obligations

granted by Chapter 75.

For a more complete answer, the Board must then take as a starting point its own

enabling statute. This enabling statute specifically grants the Board the power to, "hear,

adjudicate, or provide for the hearing or adjudication, of all matters within the

jurisdiction of the Board under this title, Chapter 43 of title 38, or any other law rule, or
regulation, and, subject to otherwise applicable provisions of law, take final action on any

such matter." 5 U.S.C. § 1204(a)(l). While not a plenary grant of authority, section

1204(a)(l) quite clearly grants Board the broad authority to weigh the merits of those

matters that are within its jurisdiction.

From its enabling statute the Board should therefore proceed to define which

matters are "within the jurisdiction of the Board under this title." To answer this

question, the Board must look to 5 U.S.C. § 7512. With exceptions not relevant here,

section 7512 applies subchapter II of Chapter 75 to, "a removal." 5 U.S.C. § 7512(1).

Next, the Board must journey to 5 U.S.C. § 7513, where it will find that, [u]nder

regulations prescribed by the Office of Personnel Management, 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," and that an employee subject to such an action, "is

entitled to appeal to the Merit Systems Protection board under section 7701 of this title."

5 U.S.C. §7513(a)and(d).

The last piece of the puzzle resides in 5 U.S.C. § 7511. Section 7511

complements section 7513 by defining the term "employee" as, in pertinent part, an

individual who has completed her probationary period. Thus, when all the pieces are put

together Chapter 75 affirmatively grants the Board the power to adjudicate an employee's

appeal of her removal from service in accordance with subchapter II of Chapter 75 unless

that removal was taken pursuant to: 1) 5 U.S.C. § 7532 (pertaining to national security);

2) 5 U.S.C. § 3502 (pertaining to RIFs); 3) 5 U.S.C. § 4303 (pertaining to unacceptable

performance removals); 4) 5 U.S.C. § 1215 (pertaining to special counsel actions); or 5)
5 U.S.C. § 7521 (pertaining to actions against administrative law judges). 5 U.S.C. §

7512(A)-(E).

This means that because Chapter 75 expressly speaks to "removals," as opposed

to adverse actions, and because suitability removals do not fall within the exclusions

specifically enumerated by 5 U.S.C. § 7512, when an agency removes a tenured

employee from the rolls of the Federal Government for suitability reasons, that agency

takes an action that on its face is covered by subchapter II of Chapter 75 of Title V of the

United States Code. As a result, the effected employee is entitled to the protections

mandated by Chapter 75, including Board review, and any limitations on those

protections that are imposed by Part 731 are invalid. Put another way, OPM cannot point

to any statutory authority that affirmatively allows it to restrict the Board as OPM

purports to do in 5 C.F.R. § 731.50(b). That an agency may taken a removal action

because it was directed to do so by OPM does not alter the fact that when an employee is

removed for suitability reasons, it is the employing agency that ultimately effects the

removal. Consequently, the Board should apply 5 U.S.C. Chapter 75 when considering

the appeals of tenured federal civilian employees who have been removed from service at

the direction of OPM for suitability reasons.

OPM's assertion that applying Chapter 75 will create a conflict with Civil Service

Rule V should also be rejected. Not only is any potential conflict the a creature of

OPM's own creation, OPM's assertion once again ignores the critical fact that it is

OPM's regulations that must conform to statute and not the other way around.
B. Application of Part 731 to Tenured Federal Employees Cannot Be

Sustained by Chevron Deference or Stare Decisis

Whether OPM argues for Chevron deference, as it claims to, or seeks to invoke

the doctrine of stare decisis, which it also appears to do, to support the continued

application of Part 731 to tenured federal civilian employees, OPM's argument lacks

merit. Chevron deference is not appropriate when, as here, an OPM interpretation of its

rule-making authority conflicts with express statutory language. See, e.g., Butterbaugh v.

Dep 't of Justice, 336 F.3d 1332,1341 (2003); Van Wersch v. Dep 't of Health and Human

Services, 197 F.3d 1144,1151 (1999). Stare decisis is policy doctrine and is not an

absolute rule. Regardless of the need for consistency and certainty, stare decisis will

yield when the rationale behind a previous interpretation or decision no longer withstands

careful analysis. See Arizona v. Gant, 129 S.Ct. 1710,1722 (2009), quoting Lawrence v.

Texas, 539 U.S. 558, 577,123 S.Ct. 2472 (2003).

Simply put, this means that the fact that OPM has been acting ultra vires for a

long time and neither the Board nor the courts have previously challenged OPM on the

application of its suitability regulations to tenured employees is not a valid argument in

favor of allowing OPM to perpetuate its mistake. This is especially true when the precise

issue raised by the Board has never been adjudicated. For example, OPM's reliance on

Folio v. Dep't of Homeland Security, 402 F.3d 1350 (Fed. Cir. 2005) is misplaced. Folio

was an entirely different case from what is presented here. Folio never worked a single

day as a federal employee. Folio was an applicant for employment. The statutory

requirements of Chapter 75 could not therefore have been triggered in that case because

there was no way that Folio could have met the definition of employee contained in 5
U.S.C. § 7511. Not only was the argument not raised, it could not have been raised in

that case.

Likewise, as explained above, any collision between Chapter 75 and OPM's

suitability regulations is the result of OPM's regulations overreaching OPM's statutory

authority. Therefore such a collision, even if likely, cannot present a sustainable reason

for the Board to prop up the otherwise invalid portions of OPM's regulations. Indeed,

OPM's argument that Congress silently, yet somehow affirmatively, ratified the use of

separate procedures for suitability removals and adverse action because of its pre-existing

knowledge of Civil Service Rule V is misdirected. Once again, the question is not

whether congress gave OPM the power to regulate suitability. The relevant question is

whether, by a general grant of rule-making authority to OPM, Congress intended to

delegate to OPM the power to restrict the jurisdiction over removal appeals that is

specifically granted to the Board by 5 U.S.C. 7513(d). There is no evidence that

Congress intended to grant OPM such power. Consequently, the Board should apply 5

U.S.C. Chapter 75 when considering the appeals of tenured federal civilian employees

who have been removed from service at the direction of OPM for suitability reasons.

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III. CONCLUSION

Based on all of the foregoing, AFGE respectfully submits that the Board should

apply 5 U.S.C. Chapter 75 when considering the appeals of tenured federal civilian

employees who have been removed from service at the direction of OPM for suitability

reasons.

Respectfully submitted,

res M. Grajal

Lssistant General

Office of the General Counsel

AFGE, AFL-CI

80 F. Street, NW

Washington, D.C. 20001

Tel: 202-639-6426

Fax.: 202-639-6441

Email: Graiaafaiafge.org

For AFGE

June 7, 2010

Date

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CERTIFICATE OF SERVICE

AGUZIEv.OPM. DC-0731-09-0261-R-1

I hereby certify and affirm that on this day, June 7,2010,1 caused the amicus

curiae brief of the American Federation of Government Employees in the abovecaptioned case to be filed as follows:

MSPB

(U.S. First Class Certified Mail)

William D. Spencer

Clerk of the Board

Office of the Clerk of the Board

U.S. Merit Systems Protection Board

1615M. StreetN.W.

Washington, D.C. 20419

202-653-7130 (fax)

es M. Grajalesl ^j Date/

ssistant General C<

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