10/19/2009 18:14 FAX 2026060082

026/026
002/008

Case Title : JENEE ELLA HUNT-O'NEAL v. OFFICE OF PERSONNEL MANAGEMENT

Docket Number ; AT-0731-09-0240-I-1
Pleading Title ; Petition for Review
Filer's Name : Jenee Elia Hunt-O'Neal

Filer's Pleading Role : Appellant

M8 sission caw: : 2009-09-25 20:22:53

Confirmation Number. 10:!3266618

page 1 of 7

“



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Ordinarily, when a party to litigation requests the Board to reopen a case
to modify an order, the Board will balance “the desirability of finality and the
public interest in reaching what ultimately appears to be the right result.” Payne
v. United States Postal Service, 69 M.S.P.R. 503 (1996). Here considerations of
both assuring finality and promoting the public interest argue in favor of the
Board reopening these matters to (i) modify its order to revoke its remand; (ii)
request the parties to brief the issues presented within 60 days of the Board's
granting of OPM's request; and (ii) invite the Director of OPM to intervene in the

case in his discretion.

Respectfully submitted,

lols Ch -

Date ELAINE KAPLAN
General Counsel

—
STEVEN E. ABOW
Assistant General Counsel
Merit Systems and
Accountability Group

hackers. th. Cae

DARLENE M. CARR
Agency Representative

Agency Ex. 2

3 0000007



10/19/2008 18:05 FAX 2026060082 . @o005/026

ql In a September 11, 2009 Initial Decision in the above-captioned apeal, the
presiding Administrative Judge affirmed the Agency’s negative suitability determination,
which resulted in the Appellant’s removal.

42 Prior to the date of the Initial Decision in the above-captioned appeal, the full
Board, in Aguzie, vacated an initial decision that affirmed the Agency’s negative
suitability determination which, as in the [Junt-O’Neal appeal, had resulted! in an
incumbent employee's removal. The Board remanded the Aguzie case for a decision on
the issue of whether the appellant had a right to appeal his removal as an adverse action,
notwithstanding 5 C.F.R. part 731, which prescribes suitability procedures distinct trom
and exclusive of the adverse action procedures in 5 C.F.R. part 752; and the issuc of
whether, if so, the other actions on appeal, L.c., debarment and cancellation of cligibilities,
remain within the Board’s jurisdiction under part 731. Aguzie, 2009 WL 7840720, at *1-
2, The Board noted that if the Agency’s suitability action were subject to an adverse
action appeal, OPM would not be the responding party, and the penalty of remova. could
potentially be mitigated. Jd. at *2. The Board vacated the initial decision and remanded
for further proceedings in Barnes on the same reasoning.

bk The threshold issues of law presented in Aguzic and Barnes—first, whether OPM
may order a removal as a suitability action under procedures distinct from and exclusive
of adverse action procedures, or whether the person removed is enlillcd to an adverse
action appeal, and second, whether the Board retains jurisdiction over the other actions

on appeal—are also the threshold issues of law in the Hunt-O’Neal appeal.



10/19/2008 18:14 FAX 2026060082 Myo24/026

U.S. MERIT SYSTEMS PROTECTION BOARD
Office of the Clerk of the Board

1615 M Street, NW.
Washington, D.C. 20419-0002

Phone: 202-653-7200; Fax: 202-653-7130) E-Mail: mspb@mspb.gov.

September 28, 2009
Notice to:

Re: Jenee Ella Hunt-O'neal v. Office of Personnel Management
MSPB Dockct Number: AT-073 1-09-0240-I-1

The Board acknowledges September 23, 2009 as the filing date of ycur petition for
review. The other party(s) may file a response, or file a cross petition for review, on or before
October 18, 2009. A cross petition for review differs from a response because it also disagrees
with the initial decision. lf a cross petition for review is filed, any response nust be filed within
25 days after the date of servicc of the cross petition. The filing date is the date the document
is postmarked, if mailed; the datc the document is reccived by the Board, if personally
delivered; the date the facsimile of the document was sent; or the date of electronic submission,
if filed via e-Appeal. All parties must notify the Board and each other in writing of any
changes in representation and/or address.

‘The record closes when the time period ends for filing a response to the petition for
review or to the cross petition. After the record closes, the Board may consider an additional
submission only if the submission includes a statement that convinces the E.oard why the
submission was not available earlier. 5 C.F.R. § 1201.114(i).

The Board encourages settlement. If the parties settle and they enter a written settlement
agreement into the record, the Board will enforce the terms. The Board has no enforcement
authority over settlement agreements that are not entered into its record.

William D. Spencer
: Clerk of the Board

Aaa W Mihrl:hA_-—
Marie Warcholak
Legal Assistant

Attachment: Settlement Program Jnformation



10/19/2003 18:08 FAX 2026060082 912/026

were entitled to appeal their removal under 5 U.S.C: § 7513(d), and 2) if so. °
whether the other actions on appeal, that is, debarment and cancellation of
éligibilities, remain within the Board's jurisdiction under 5 C.F.R. § 731.501.

The analysis preceding the Board's orders in both cases raises for the first
time issues casting doubt on the authority of OPM, as well as the many agencies
that take suitability actions under authority delegated by OPM, to take remaval
actions under 5 C.F.R. Part 731. Because these issues are not dependent in any
way on specific factual determinations, including credibility determir ations that
are routinely made by the Board's administrative judges in the first iastance, and
because they raise legal issues of first impression, it is most appror riate for the
Board itself to decide these issues in the first instance, subject to review by the
Court of Appeals for the Federal Circuit. Remanding these decisioris is an
unnecessary step that will only delay resolution of these important lagal issues.

It is appropriate — indeed necessary ~ that these questions that the Board itself
has interposed be decided expeditiously to prevent a long period of uncertainty
during which OPM, agencies, and appellants and their representatives will not
know how to proceed or react,

Indeed, it is not even clear that administrative judges may answer the first
question posed in the affirmative without overruling Board precedent — sornething
that is entirely beyond their authority. Administrative and judicial efficiency, as
well as the uninternupted efficient operation of the Government's vi-al suitability
program require the Board to adjudicate these matters without superfluous

intermediate steps.

Agency Ex 2 agoonne

2



10/19/2009 18:07 FAX 2026060082 (009/026

09/28/2009 10:59 FaX 7037567112 MSPB (0002/0003

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

HYGINUS U. AGUZIE, ; pocket NUMBER

Appellant, ..."DC-073 1-09-0261-B-1
v.
OFFICE OF PERSONNEL DATE: September 28, 2009
MANAGEMENT,
Agency.

NOTICE OF REASSIGNMENT

The above-captioned case has been reassigned to Administrative Judge
Ronald J, Weiss of the Offite of Regional Operations. Any and all submissions
filed by the parties in this matter must be directed to. Administrative Judge
Ronald J. Weiss,

U.S. Merit Systems Protection Board
. Office of Regional Operations
1615 M Street, NW
Washington, DC 20419
Telephone No. (202) 653-7200
FAX No. (202) 653-8911

FOR THE BOARD: Quid). Sif

Jeremiah Cassidy
Regional Director

Agency Ex. 1 0000004



10/19/2008 18:05 FAX 2028080082 @ 006/026

4 On September 28, 2009, the Board’s Washington Regional office fi ed Notices of
Reassignment, reassigning the remanded Aguzic and Bames appeals to Adininistrative
Judge Ronald J. Weiss of the Board’s Office of Regional Operations. (Ex. 1, infra.)

95 On October 6, 2009, the Agency filed its Motion to Reopen the Board’s orders in

Aguzie and Barnes, asking the Board to modily its orders to revoke its remands; to

request the parties to brief the issues presented before the Board itself to irvite the
Director of OPM to intervene; and to adjudicate the pure issues of law pres znted without
the superfluous intermediate step of an initial decision by Judge Weiss. (Ex. 2, infra.)
‘The Agency concurrently filed Motions for Stay with Judge Weiss. (Ex. 3, infra,
enclosures excluded)

76 The Aguzie and Bames appeals are pending al the initial level with Judge Weiss

pursuant to the Board’s remand orders, yet the Hunt-O"Neal appeal, which cannot be

decided until resolution of the Aguzie and Bames appeals, has not been remanded, and is
before the full Board on a petition for review. The procedural posture of the appeals
furnishes good cause for the Board to extend the time to file a response to the petition for

review in JIunt-O'Neal, while the Board resolves the threshold issue of law in Aguzic

and Bares, *

V7 The Agency did not learn of Appellant’s Petition for Review dated September 23,
2009 until October 15, 2009, the date thal it received the Board’s Notice. See ,
Attachment A.

8 The Agency did not receive a copy of AppelJant’s Petition for Revizw until

October 16, 2009, whcn—at the Agency’s request—the MSPB faxed il a copy.



ae

10/18/2008 18:14 FAX 2026060082 025/026
WO/TH/2009 17:44 FAX 001/008

Jo. 1G

| (20a) $53.7200



10/19/2003 18:07 FAX 2026060082 @o11/026

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE,
Appellant,

DOCKET NUMBER
DC-0731-09.0261-B-1

DATE: OCT - 6 2009°

OFFICE OF PERSONNEL MANAGEMENT,

)
)
)
)
v. )
)
)
Agency. )

=)
MOTION TO REOPEN

The Office of Personnel Management moves the Board to reopen its
orders in Aguzie v. Office of Personnel Management, No. DC-0731-09-0261-1-1
(Sept. 3, 2009) and Bames v. Office of Personnel Management, No. DC-0731-
09-0260-I-1 (Sept. 3, 2009), two appeals of OPM actions removing appellants
from their positions, debarring them from competition, and canceling their
eligibilities under 5 C.F.R. Part 731. This action is warranted in the Board's
discretion to speed adjudication of these non-fact dependent issues of law in
order to allay uncertainty caused by the Board's analysis. Specifically, OFM
requests that the Board modify its orders to revoke its remands, request the
Parties to brief the issues presented before the Board itself within 60 days of the
Board's granting of OPM’s request, and invite the Director of OPM to intervene in
the case in his discretion.

In those orders the Board vacated the initial decisions in both cases and
remanded the cases to the administrative judge to obtain briefing on two pure

issues of law that were not raised below. They are 1) whether the appellants

Agency Ex. 2 0000001



| 10/18/2009 18:03 FAX 2026060082 @oo1so26

Office of Personnel Managemont
Office of General Counsel
1900 E St N.W.
- Washington, 0.C, 20415
Voice: (202) 606-1700
Facsimile: (Check one)
O (202) 606-2609
O (202) 606-0082
1 (202) 606-1906

-ey- mk. al the. Baar
ts Sy stems Po fertiFrome Sayer Horne: : Tevrale ry
ran(36.4) 653-730 res AO
prone (A165 — 7400 me 10/19/09
neenee Ela Hunt ~ Neo { oo :

Ve OPM
QUrgent =. For Review Cresco Comment C1 Please Reply Cl Pteace Recycie |

® Comments; —-
caey's Motion 8 on Bete rnion of

Age
foe



10/18/2009 18:03 FAX 2026060082 @ 015/028

UNITED STATES OF AMERICA ~
MERIT SYSTEMS PROTECTION BOARD

HOLLEY C. BARNES,
Appellant, °

DOCKET NUMBER
DC-0731-09 -0260-B-1

‘ pare.OCT > 6 209

OFFICE OF PERSONNEL MANAGEMENT,
Agency.

eS SSS

|

MOTION TO REOPEN
The Office of Personne! Management moves the Board to reopen its

orders in Aguzie v. Office of Personnel Management, No. DC-0731-09-021-I-1
(Sept. 3, 2009) and Barnes v. Office of Personnel Management, No. DC-0731-
09-0260-I-1 (Sept. 3, 2009), two appeals of OPM actions removing appellants
from their positions, debarring tiem from competition, and cancelirig their
eligibilities under 5 C.F.R. Part 731. This action is warranted in the Board’s
discretion to speed adjudication of these non-fact dependent issues of law in
order to allay uncertainty caused by the Board’s analysis. Specifically, OPM
requests that the Board modify its orders to revoke iis remands, request the

\ parties to brief the issues presented before the Board itself within GO days of the

Board’s granting of OPM'’s request, and invite the Director of OPM to intervene in

! the case in his discretion.
In those orders the Board vacated the initial decisions in both cases and
remanded the cases to the administrative judge to obtain briefing on two pure

issues of law that were not raised below. They are 1) whether the appellants

Agency Ex. 2 oooonns



10/18/2009 18:08 FAX 2026060082 @ 013/026

Ordinarily, when a party to litigation requests the Board to rsopen a case
to modify an order, the Board will balance “the desirability of finality and the’
public interest in reaching what ultimately appears to be the right result." Payne
v. United States Postal Service, 69 M.S.P.R. 503 (1996). Here considerations of -
both assuring finality and promoting the public interest argue in fa‘vor of the
Board reopening these matters to (i) modify its order to revoke its remand; (ii)
request the parties to brief the issues presented within 60 days of the Board's
granting of OPM's request; and (iii) invite the Director of OPM to intervene in the
case in his discretion.

Respectfully submitted,

(bles ChE

Date ELAINE KAPLAN
: General Counsel

TEVEN E. ABOW
Assistant General Counsel

Merit Systems and
Accountability Group

thobere- th. Cae

DARLENE M. CARR
Agency Representative

Agency Ex, 2
0000003



Bo10/o26
10/19/2008 18:07 FAX 2026060082

09/28/2009 10;57 FAX 7037867112 MSPB

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

HOLLEY C. BARNES,

DOCKET NUMBER
Appellant, D€-0731-09-0260-B..1
v. i
OFFICE OF PERSONNEL DATE: September 28, 2009
. MANAGEMENT, . .

Agency.

NOTICE OF REASSIGNMENT

The above-captioned case has been reassigned to Admini:
Ronald J. Weiss of the Office of Regional Operations. Any and ail submissions

filed by the parties in this matter must be directed to Administrative Judge
Ronald J, Weiss,

strative Jud ge

U.S. Merit Systems Protection Board
Office of Regional Operations
1615 M Street, NW
Washington, DC 20419
Telephone No. (202) 653-7200

. Fax No. (202) 653-8911

FOR THE BOARD; . Qamh! Osu

++ Jeremiah Cassidy
_ Regional Director

Agency Ex. 1 0000002

@oooz/a003



10/18/2003 18:04 FAX 2026080082 004/026

decided until resolution of the Aguzie and Barnes appeals, has not been reminded, and is

before the full Board on a petition for review, The current status of the appeals furnish
good cause for the Board to extend the time to file a response to the petition for review in
Hunt-O’Neal, while the Board resolves the threshold issues of law in Aguzie and Barnes.

Given the unsettled posture of all cases in which OPM has removed appcllants
under part 731, there is good cause for this extension to promote an orderly and coherent
resolution to the significant Government-wide issues presented in these cases.

Second, in the altemative, the Agency requests that its request be granted in order
because the Agency did not learn of Appellant’s Petition unti] October 15, 2.009, which is
the datc that i1 received the Board Notice dated September 28, 2009. See Attachment A.
‘The Agency did not receive a copy of the Appellant's Petition until (upon the Agency’s
request) the Board faxed it a copy on October 16, 2009. See Attachment B Therefore,
in order to timely file a response this extension is requested.

IL Sworn Statement of Good Cause

{, Joyce B. Hartis-~founkara, hereby declares:

That for the following reasons, there is good cause for the Clerk of he Board to
grant the Agency an extension of the time to respond to the Appellant’s Petition for
Review in the above-captioned appeal, until such lime as the Board rules 01 the Agency’s
October 6, 2009 Mations to Reopen in the related cases of Aguzic v. Officn of Personnel
Management, No, DC-0731-09-0261-1-1,2009 WL 2840720 (M.S.P.3. filed Sept. 3,
2009) and Barnes v. Office of Personnel Management, No. DC-0731-09-0260-I-1, 2009
WL 2840719 (M.S.P.B. filed Sept. 3, 2009), and decides the unresolved issucs of law

presented in those appeals.



10/19/2009 18:11 FAX 2026060082 @019/026

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

HYGINUS U, AGUZIE,
Appellant,

* DOCKET NUMBER
DC-0731-09-0261-B-1

v.
. . DATE: OCT ~ 6 cg

OFFICE OF PERSONNEL MANAGEMENT,

Agency.

woe eee YS

L

MOTION FOR STAY

The Office of Personnel Management requests that the
Administrative Judge stay proceedings in the above-captioned case until
the Board rules on the attached Motion to Reopen. OPM’s Motion to
Reopen asks the Board to revoke its remand orders in the above-
captioned matter and to adjudicate itself the pure issues of law raised in its
opinions and orders in these matters. Granting this motion wil, conserve
the resources of the Board and the parties to'these cases.

Respectfully submitted,

Stéven E. Abow

Assistant General Counsel
Agency Representative

(Meabise Le Can

Darlene M. Carr
Agency Representative

Attachment
Agency Ex. 3 0000094.



10/19/2009 18:13 FAX 2026060082

Docket No. AT-0731-09-0240-I-t
Party: Agency’s Representative

Joyce B. Iarris-Tounkara, Esq.
Office of Personne] Management
Office of the Gencral Counsel
1900 E Street, N.W., Room 7353
Washington, DC 20415-1300

@023/028



10/19/2008 18:04 FAX 2026060082 003/026

adjudicates the unresolved issues of law presented in those appeals. Second, the Agency
requcsts this extension because it did not learn of the Appellant’s Petition for Review
until October 15, 2009,7 which was approximately 4 days before it was duc, and did not
receive a copy until Octoher 16, 2009, which was approximately 3 days before it was
duc. ‘Ihus, in the alternative, the Agency requests that its request be grantec in order to
timely respond to Appellant’s Petition for Review.

On October 6, 2009, OPM moved the Board to reopen Aguzie and Bames on its
own motion to speed adjudication of non-fact dependent issues of law in order 10 allay
uncertainty caused by the Board’s analysis. Specifically, OPM requested that the Board
modify its orders to revoke its remands, request the parties to brief the issues presented
before the Board itself within 60 days of the Board’s granting of OPM’s request, and
invite the Director of OPM to intervene in the case in his discretion. Simultaneously,
OPM moved the administrative judge who has been assigned to all Aguzie und Bames-
related cases, Judge Weiss, to stay proceedings pending resolution of OPM's motion to
reopen.

Thc instant case presents the same issues that the Board remanded in Aguzie and

Barnes: whether an appellant who has becn removed by OPM under part 731, Title 5,

Code of Federal Regulations is entitled to appeal his removal under 5 U.S.C!. §7513(d),
and, if so, whether the other actions on appeal, i.c., dcbarment and cancellation of
eligibilities, remain within the Board’s jurisdiction under 5 C.F.R. §731.50:.

The Aguzie and Bames appeals are pending at the initial level with Judge Weiss

pursuant to the Board’s remand orders, yet the Hunt-Q’Neal appeal, which cannot be

* The Agency telephoned the Appellant to determine whether there would be any objection to a mation to
extend the deadline'to respund to the Appellant’s Petition for Review but was unable to contact her at the
telephone numbers listed in the record.



10/19/2003 18:03 FAX 2026060082 @ 002/026

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JENEE ELLA HUNT-O°NFAL, DOCKET NO.
AT-073)-09-0:240-I-1
Appellant,
Before the Clerk of the Board
ve

OFFICE OF PERSONNEL MANAGEMENT,

Agency. Date:

OCT 19 209

Le rr rrr SY

AGENCY'S MOTION FOR AN EXTENSION OF THE TIME TO FILE A
RESPONSE TO THE PETITION FOR REVIEW, AND STATEMENT OF GOOD
CAUSE

1, Motion for an Extension of the Time 10 File a Response to the Petition for Review

Pursuant to 5 C-F.R. §1201.114(e), the Office of Personnel Management (OPM or
Agency) moves for the Clerk of the Board to grant the Agency an extension of time to
respond to Jenee Ella Hunt-O’Neal’s (Appellant’s) September 23, 2009 Petition fer
Revicw (Petition) of the September 11, 2009 Initial Decision in the above-zaptioned
appeal. The response is currently duc on October 19, 2009). Specifically, the Agency
moves for an extension until 30 days alicr the Merit Systems Protection Board (Board)
rules on the Agency’s October 6, 2009 Motions to Reopen in the related appeals of
Aguzic v, Office of Personnel Management, No. DC-0731-09-0261-I-1, 2009 WL
2840720 (M.S.P.B. filed Sept. 3, 2009) and Barnes v, Office of Personnel Management,
No. DC-0731-09-0260-T-1, 2009 WL 2840719 (M.S.P.B. filed Sept. 3, 2009), and

) The U.S, Merit Systems Protection Board (MSPR) notice states that the Agency may fil: a response on or
before October 18, 2009. However, October 18, 2009 was a Sunday.



10/19/2008 18:10 FAX 2026080082 016/026

were entitled to appeal their removal under 5 U.S.C. § 7513(d), and 2) if so,
whether the other actions on appeal, that is, debarment and cance'lation of
eligibilities, remain within the Board's jurisdiction under 5 C.F.R. § 731.501.

The analysis preceding the Board's orders in both cases raises for the first
time issues casting doubt on the authority of OPM, &§ well as the miany agencies
that take suitability actions under authority delegated by OPM, to take removal
actions under 5 C.F.R. Part 731, Because these issues are not de2xendent in any
way on specific factual determinations, including credibility deterrnixations that
ate routinely made by the Board's administrative judges in the first instance, and
because they raise legal issues of first impression, it is most appropriate for the
Board itself to decide these issues in the first instance, subject to review by the
Court of Appeals for the Federal Circuit. Remanding these decisiois is an
unnecessary step that will only delay resolution of these important egal issues.

It is appropriate — indeed necessary — that these that questions the Board itself
has interposed be decided expeditiously to prevent a long period of uncertainty
during which OPM, agencies, and appellants and their representatives will not
know how to proceed or react.

Indeed, it is not even clear that administrative judges may answer the first
question posed in the affirmative without overruling Board precede rt — something
that is entirely beyond their authority. Administrative and judicial efficiency, as
well as the uninterrupted efficient operation of the Government's vi ‘al Suitability
program require the Board to adjudicate these matters without superfluous

intermediate steps.

Agency Ex. 2 aqo000ngG
2



10/19/2003 18:12 FAX 2026060082 021/026

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

HOLLEY C. BARNES,
Appellant,

)
) DOCKET NUMBER
)
)
v. )
)
)
)

DC-0731-09-0260-B-1

DATE: OCT _~ 6 23
OFFICE OF PERSONNEL MANAGEMENT,

Agency.
)

OTION FOR STAY

The Office of Personnel Management requests that the

Administrative Judge stay proceedings in the above-captioned case until
the Board rules on the attached Motion to Reopen. OPM's Mction to
Reopen asks the Board to revoke its remand orders in the abcve-
captioned matter and to adjudicate itself the pure issues of law raised in its
opinions and orders in these matters. ‘Granting this motion will conserve
the resources of the Board and the parties to these cases.

Respectfully submitted,

Stéven E. Abow
Assistant General Counsel
Agency Representative

Mihir lec (an

Darlene M. Carr
Agency Representative

Attachment
Agency Ex. 3 000n00s3