10/15/2009 13:27 FAX 001/023 .

THE OFFICE OF THE GENERAL COUNSEL

U.S. OFFICE OF PERSONNEL MANAGEMENT

TO:

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FROM: /ft.

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phone - (*ob -noo fax (202) 606-2609

DATE:

OCT 1 5 2009 '

TOTAL NUMBER OF PAGES (including cover sheet):

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10/15/2009 13:27 FAX ®002/02 3

i

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES A. SCOTT, ) DOCKET NO:

) CH-0731-09-0578-M

Appellant, )

) Before the Clerk of the Board

v. )

)

OFFICE OF PERSONNEL MANAGEMENT, ) Date: XT 15 2009

)

Agency. )

AGENCY'S MOTION FOR AN EXTENSION OF THE TIME TO FILE A RESPONSE

TO THE PETITION FOR REVIEW. AND STATEMENT OF GOOD CAUSE

I. Motion for an Extension of the Time to File a Response to the Petition for Review

Pursuant to 5 CF.R. 1201,1 14(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 James

A. Scott's (Appellant's) September 217 2009 Petition for Review of the August 21,2009 Initial

Decision in the above-captioned appeal. The response is currently due on October 16, 2009.

Specifically, the Agency moves for an extension until 30 days after the Merit Systems Protection

Board (Board) rules on the Agency's October 6,2009 Motions to Reopen in the related appeals of

AgUZJe V. Office of Personnel Management. No. DC-0731-09-0261-1-1, 2009 WL 2840720

(M.S.P.B- filed Sept. 3,2009) and Barnes v. Office of Personnel Management. No. DC-0731-09-

0260-1-1,2009 WL 2840719 (MS.P.B. filed Sept. 3, 2009), and adjudicates the unresolved

issues of law presented in those appeals.
10/15/2009 13:2? FAX B003/023

The Agency submits that this Motion should be granted because it is filed prior to

October 16, 2009, the date on which the Agency's response to the Petition for Review is due, and

because the Agency has shown good cause foe the requested extension in its Sworn Statement of

Good Cause, pt. II, infra.:

In particular, on October 6,2009, OPM moved the Board to reopen Aauzie and Barnes on

its own motion to speed adjudication of non-fact dependent issues of law in order to alky

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 Apiiyie and Barnes-related cases, Judge Weiss, to stay proceedings

pending resolution of OPM's motion to reopen.

The instant case presents the same issues that the Board remanded in Aguzie and Barnes:

whether an appellant who has been 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, Le_.» debarment and cancellation of eligibilities, remain within the

Board's jurisdiction under 5 C.F.R. § 731.501.

1 The Agency contacted the Appellant's representative, Jeffrey G. Letts, Esq., pursuant to 5

C.F.R. 1201.55(a) to determine whether there would be auy objection to a motion to extend the

deadline to respond to the Appellant's Petition for Review, The Appellant's representative

advised on October 8,2009 that he objects to the Agency's motion.
10/15/2009 13:27 FAX ©004/02 3

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

to the Board's remand orders, yet the Scott appeal, which cannot be decided until resolution of

the Aguzie and Barnes appeals, has not been remanded, and is before the full Board on a petition

for review. The current status of the appeals furnishes good cause for the Board to extend the

time to file a response to the petition for review in Scott while the Board resolves the threshold

issues of law in Aguzie and Barnes.

Given the unsettled posture of all cases in which 0PM has removed appellants 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.

n. Sworn Statement of Good Cause

I, Robert J. Girouard and I, Darlene M. Carr, hereby declare:

That for the following reasons, there is good cause for the Clerk of the Board to grant the

Agency an extension of the time to respond to the Appellant's Petition for Review in the abovecaptioned appeal, until such time as the Board rules on the Agency's October 6,2009 Motions to

Reopen in the related cases of Aeuzic v. Office of Personnel Management. No. DC-0731-09-

026M-1, 2009 WL 2840720 (M.S.P.B. filed Sept. 3,2009> and Barnes v. Office of Personnel

Management No. DC-0731-09-0260-1-1, 2009 WL 2840719 (M.S.P.B. filed Sept 3, 2009), and

decides the unresolved issues of law presented in those appeals.
10/15/2003 13:2 7 FAX ®005/02 3

f 1 In an August 21, 2009 Initial Decision in the above-captioned appeal, the presiding

Administrative Judge affirmed the Agency's negative suitability determination, which resulted in

the Appellant's removal, on grounds that "[a]n analysis of applicable statutes and Executive

Order 10577 shows OPM has the authority to direct agencies to separate employees," that "[t]he

suitability regulations issued by OPM specifically cover actions against current employees," and

that "a suitability action under Part 731 includes a removal from employment." Scott y. Office of

Per. Mant.. No. CH-0731-09-0578-I-1, at 5-6 (M.S.P.B. filed Aug. 21,2009) (Init. Dec.)- The

Administrative Judge acknowledged that the Board was "currently considering" the Aguzie and

Barnes appeals on petitions for review. Init Dec. at 7 n,3.

12 Thirteen days later, the full Board, in Aguzie, vacated an initial decision that affirmed the

Agency's negative suitability determination which, as in the Scott appeal, had resulted in an

incumbent employee's removal. The Board remanded the 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 from and exclusive of the

adverse action procedures in 5 C.F.R. part 752; and the issue of whether, if so, the other actions

on appeal, i.g., debarment and cancellation of eligibilities, remain within the Board's jurisdiction

under part 731. Aguae, 2009 WL 2840720, 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 removal could potentially be mitigated. Id. at *2. The Board vacated

the initial decision and remanded for further proceedings hi Barnes on the same reasoning.
10/15/2009 13:28 FAX ®006/02 3

H 3 The Appellant in the above-captioned Appeal, James Scott, was initially appointed in

schedule B of the excepted service on January 23,2006. (Standard Foim (SF) 50, in Agency

File, tab 2r at 1.) He converted to a career appointment in the competitive service on January 23,

2008. (SF 50, in Agency File, tab 2q at 1.) DFAS removed him by order of 0PM on April 13,

2009. (SF 50, in Agency File, tab 2a at 1.) Had his removal been an adverse action, rather than a

suitability action, he would have met the definition of an "employee" in 5 U.S.C.

7511 (a)(l XAXO, based on his status as a non-probationary employee in the competitive service.

The Appellant concedes that he would have met this definition. (Appellant's Pet. for Review 3,

Sept, 21,2009.)

If 4 Accordingly, the threshold issues of law presented in Aguzie 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 entitled 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 Scott appeal.

1" 5 The Appellant states that it is "hopefully unnecessary" for the Board to address these

threshold issues of law in adjudicating his appeal. (Appellant's Pet. for Review 3 & Transmittal

Ltr.) The Agency respectfully submits that the issues are unavoidable.
10/15/2009 13:28 FAX ®007/02 3

K 6 On September 28,2009, the Board's Washington Regional Office filed Notices of

Reassignment, reassigning the remanded Aguzie and Barnes appeals to Administrative Judge

Ronald J. Weiss of the Board's Office of Regional Operations. (Ex, 1, infra.)

ff7 On October 6,2009, the Agency filed its Motions to Reopen the Board's orders in Aguzie

and Barnes, asking the Board to modify its orders to revoke its remands; to request the parties to

brief the issues presented before the Board itself; to invite the Director of OPM to intervene; and

\

to adjudicate the pure issues of law presented 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)

TfS The Aguzie and Barnes appeals are pending at the initial level with Judge Weiss pursuant

to the Board's remand orders, yet the Scott appeal, which cannot be decided until resolution of

the Aguzie and Barnes 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'Scott while the Board resolves the

threshold issue of law in Aguzie and Barnes. The procedural posture of the appeals incidentally

also furnishes additional good cause for the Board to grant the Agency's October 6, 2009 Motions

to Reopen so that all three appeals may be expeditiously resolved.
10/15/2003 13:28 FAX

 v ©008/023

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on

/ J

Date Date

Signature Signature

Robert J. Girouard and Darlene M. CanAgency Representatives

Office of the General Counsel

Office of Personnel Management

1900 E Street, KW, Suite 7353

Washington, DC 20415-1300

Tel. No,: (202)606-1700

Fax No.: (202)606-0082

Enclosures
10/15/2003 13:2 9 FAX

09/a8/2009 10:59 FAX 7037567112 MSPB

0010/023

i]0002/0003

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HYGINUS U. AGUZIB,

Appellant,

v.

OFFICE OF PERSONNEL

MANAGEMENT,

Agency.

- -POCKET NUMBER

... 0C-0731-09-0261-B-1

DATE: September 28, 2009

NOTICE OF REASSIGNMENT

The above-captioned case has been reassigned to Administrative Judge

Ronald J, Weiss of the Office 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, (2"02) 653-7200

FAX No. (202)653^8911

FOR THE BOARD:

Jeremiah Cassidy

Regional Director

Agency Ex. 1 OOOOOOl
10/15/2009 13:2 9 FAX @011/023

Mgpfi

 ©0002/0003

Q8/ZB/2009 10:67 FAX 70375B7112

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HOLLEY C. BARNES, . DOCKET NUMBER

Appellant, DC-0731-09-0260-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 Office 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;

; • Jeremiah Cassidy

Regional Director

Agency Ex. 1 0000002
10/15/2003 13:29 FAX ' @)012/023

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE, ) DOCKET NUMBER

Appellant, ) DC-0731-09-0261-B-1

)

V

" ) DATE:

 OCT

. " 6

OFFICE OF PERSONNEL MANAGEMENT, )

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-0731r09-0261-M

(Sept 3, 2009) and Barnes v. Office of Personnel Management, No. DC-0731-

09-0260-1-1 (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, OPM

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

^ - ooooooi

Agency Ex. 2
10/15/2009 13:3 0 FAX 01013/023

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, debarnient and cancellation 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, as well as the many 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 dependent in any

way on specific factual determinations, including credibility determinations that

are 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 decisions is an

unnecessary step that will only delay resolution of.these important legal 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-something

that is entirely beyond their authority. Administrative and judicial efficiency, as

well as the uninterrupted efficient operation of the Government's vital suitability

program require the Board to adjudicate these matters without superfluous

intermediate steps..

Agency Ex. 2

2 '
10/15/2009 13:3 0 FAX ®014/02 3

Ordinarily, when a party to,litigation requests the Board to reopen a case

to modify an order, the' Boa'rd 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

b,oth 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 (iii) invite, the Director of OPM to intervene in the

case in his discretion.

Respectfully submitted,

Date ELAINE KAPLAN

General Counsel

L

""STEVEN E.ABOW

Assistant General Counsel

Merit Systems and

Accountability Group

DARLENEM. CARR

Agency Representative

Agency Ex. 2

0000003

3
10/15/2003 13:31 FAX 01016/023

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HOLLEY C. BARNES, ") DOCKET NUMBER

Appellant, ) DC-0731-09-0260-B-1

)

) pATE:OCT -6 2009

OFFICE OF PERSONNEL MANAGEMENT, )

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 Barnes v. Office of Personnel Management, No. DC-0731-

09-0260-1-1 (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, OPM

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 OOOOOO5
10/15/2009 13:3 1 FAX 01017/023

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

eligibilities, remain1 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 OPTffl, as"Well as the many 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 dependent in any

way on specific factual determinations, including credibility determinations that

are 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 decisions is an

unnecessary step that will only delay resolution of these important legal 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 precedent - something

that is entirely beyond their authority. Administrative and judicial efficiency, as

well as the uninterrupted efficient operation of the Government's vital suitability

program require the Board to adjudicate these matters without superfluous

intermediate steps.

Agency Ex. 2 OOOOO06

2
10/15/2003 13:3 2 FAX ®01S/02 3

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 (iii) invite the Director of OPM to intervene in the

case in his discretion.

Respectfully submitted,

Date ELAINE KAPLAN

General Counsel

-"STEVEN EABOW

Assistant General Counsel

Merit Systems and

Accountability Group

DARLENE1rf.CARR'

Agency Representative

Agency Ex. 2

0000007

3
10/15/2009 13:32 FAX . ®020/023

UNITED STATES OF AMERICA

. MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE, ) ' DOCKET NUMBER

Appellant, ) DC-0731-09-0261-B-1

)

V

" ) DATE: OCT - 6 20D9

OFFICE OF PERSONNEL MANAGEMENT, )

Agency. )

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 abovecaptioned 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,

Steven E. Abow

Assistant General Counsel

Agency Representative

DarJeneM, Carr

Agency Representative

Attachment

Agency Ex. 3 OOOOOO1
10/15/2009 13:3 3 FAX 01022/023

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HOLLEY C. BARNES, ) DOCKET NUMBER

Appellant, ) DC-0731-09-0260-B-1

)

) DATE: OCT - .6 2009 ,

OFFICE OF PERSONNEL MANAGEMENT, )

Agency. )

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. QPM's Motion to

Reopen asks the Board to revoke its remand orders in the abovecaptioned matter and to adjudicate itself the pure issues of (aw raised in its

opinions and orders in these.matters. Granting this motibn will cons&rv©

the resources of the Board and .the parties to these cases.

Respectfully submitted,

Steven E. Abpw

Assistant General Counsel

Agency Representative

Darlene M. Carr

Agency .Representative

Attachment

Agency Ex. 3 00000^3