UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

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Hyginus U. Aguzie, Holley C. Barnes, ) Docket Nos. *£ if^

Jenee Ella Hunt-O'Neal, and ) 2 m o

James A. Scott, ) DC-0731-09-0261-FJS , <

} DC-0731-09-0260-RS01 -

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Appellants, ) AT-0731-09-0240-Iol 3 3- -vj Q.

) CH-0731-09-0578-P2! ^ <^> ^J

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Office of Personnel Management, ) uuv' *

Agency. ) r*

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BRIEF FOR THE OFFICE OF PERSONNEL MANAGEMENT "*"•

Introduction

^

On October 15, 2009, the Merit Systems Protection ^:_; c

Board (MSPB; the Board) granted the Office of Personnel

Management's {0PM' s) motion to reopen in these two appeals.

It consolidated the appeals for adjudication and granted

0PM 45 days to file a brief responding to the two questions

presented in its opinions and orders in these cases:

1. Whether the appellant is entitled to invoke the

adverse action procedures of 5 U.S.C. § 7513 (d)

to appeal his or her removal, notwithstanding

that the removal was ordered by 0PM pursuant to

its suitability regulations at 5 C.F.R. Part

731, and if so,
2. Whether review of the other actions on appeal,

i.e., debarment and cancellation of

eligibilities, remain within the Board's

jurisdiction under 5 C.F.R. § 731.501.

Aguzie v. Office of Pers. Mgmt., 112 M.S.P.R. 276, 279

(2009); Barnes v. Office of Pers. Mgmt., 112 M.S.P.R. 273,

275 (2009).

On October 15, 2009, the Board consolidated Aguzie and

Barnes with the appeal of James A. Scott v. Of~r~ice of

Personnel Management, No. CH-0731-09-0578-I-1. On October

22, 2009, the Board consolidated to Aguzie, Barnes, and

Scott the appeal of Jenee Ella Hunt-O'Neal v. Office of

Personnel Management, No. AT-0731-09-0240-I-1.l

STATEMENT OF THE CASE

A. Background

On December 15, 2008, 0PM informed the appellant

Aguzie, who had been hired by the United States Commission

on Civil Rights on May 17, 2006, that it had found him

0PM submits that the order consolidating the HuntO'Neal appeal to the other three appeals may have been

improvidently granted. Appellant Hunt-O'Neal apparently

would not, based on her service history, meet the

definition of an "employee" in 5 U.S.C. § 7511(a)(1)(A).

See Hunt-O'Neal Agency File, tabs 2a, 2n (Notification of

Personnel Action forms showing that Ms. Hunt-O'Neal was

appointed January 7, 2008 subject to a one-year

probationary period, and removed less than one year later,

on January 5, 2009}.
unsuitable for his position under 5 CFR Part 731. OPM

charged Aguzie with making material, intentional false

statements in his employment application, which is one of

eight specified grounds for determining an individual

unsuitable for federal employment under 5 C.F.R. §

731.202(b)(3).

Similarly, on December 1, 2008, OPM informed the

appellant Barnes, who had been hired by the Department of

Homeland Security on November 12, 2006, that it had found

her unsuitable for her position under 5 C.F.R. part 731.

OPM charged Barnes with making material, intentional false

statements on an SF-86 Questionnaire for National Security

Positions and in a "Personal Subject Interview."

Consistent with the procedural safeguards provided to

employees by 5 C.F.R. §§ 731.302-303, both Aguzie and

Barnes were afforded notice and an opportunity to respond.

Thereafter, as required by 5 C.F.R. § 731.304, OPM issued

decisions based on the evidence of record concerning the

material, intentional false statements, in each case taking

into account the "additional considerations" enumerated at

5 C.F.R. § 731.202(c) that it deemed pertinent. OPM

directed both Aguzie's and Barnes' employing agencies to

remove them from the rolls under 5 CFR § 731.304. OPM also

cancelled any reinstatement eligibility obtained from the
appointments or any other eligibilities Aguzie or Barnes

may have had for positions in the competitive service; and

debarred each of them from competition for, or appointment

to, any covered position for a period of three years.

Aguzie, 112 M.S.P.R. at 277; Barnes, 112 M.S.P.R. at 274.

B. The Board's Decisions

The Board's initial decisions sustained 0PM's

suitability removal actions in both Aguzie and Barnes.

Both appellants filed petitions for review.

The Board found that neither petition met the Board's

criteria for review and it denied both. Nonetheless, the

Board reopened the cases on its own motion to "address the

question, not raised below or on petition for review, of

whether the appellant is entitled to appeal his [or her]

removal to the Board as an adverse action under 5 U.S.C.

chapter 75, subchapter II." Aguzie, 112 M.S.P.R. at 277-

78; Barnes, 112 M.S.P.R. at 275.

The Board observed that the appellants occupied

competitive service positions and had completed their

probationary periods "therefore satisfying] the definition

of an 'employee1 at 5 U.S.C. § 7511 (a) (1) (A)." Aguzie, 112

M.S.P.R. at 278; Barnes, 112 M.S.P.R. at 275. The Board

noted that removals may fall within the scope of Chapter 75

of Title 5 and that "an employee against whom a[ ]
[Chapter 75] action is taken is entitled to certain

procedural protections . . . ." Aguzie, 112 M.S.P.R. at

278. Therefore, the Board suggested, "notwithstanding

0PM's characterization of the removal as an action under 5

C.F.R. part 731," the appellants "may have a statutory

right to appeal [their] removal as an adverse action under

chapter 75, subchapter II." Aguzie, 112 M.S.P.R. at 278;

Barnes, 112 M.S.P.R. at 275.

As the Board recognized, "[t]he distinction [between a

removal under Chapter 75 of Title 5 and one under 5 C.F.R.

Part 731] is not merely academic." Aguzie, 112 M.S.P.R. at

278. The Board's Chapter 75 jurisdiction includes the

authority to mitigate penalties under the factors

articulated in Douglas v. Vetarans Administration, 5

M.S.P.R. 280, 296 (1981). By contrast, its jurisdiction

under Part 731 is limited to determining whether the

underlying suitability determination is supported by

preponderant evidence. 5 C.F.R. § 731.501; see also Folio

v. Dep't of Homeland Sec., 402 F.3d 1350, 1354-55 (Fed Cir.

2005}. In addition, the respondent in an adverse action

under Chapter 75 would not be 0PM, but would be the

employing agency "as it was the latter agency that effected

the removal action, even if it did so at 0PM's direction"

under 5 C.F.R. § 731.304 ("the employing agency must remove
the appointee or employee from the rolls within 5 work days

of receipt of OPM's final decision")- Aguzie, 112 M.S.P.R.

at 278.

The Board acknowledged that OPM's suitability

regulations preclude taking a removal action under both 5

C.F.R. Part 731 and Part 752. It opined that "[t]o the

extent § 731.204(f) may purport to carve out an exception

to the Board's statutory jurisdiction under 5 U.S.C.

§ 7513(d), the validity of the regulation is in doubt."

Id. at 278-79. Based on this discussion, the Board posed

the two questions that we now address in this brief.2

SUMMARY OF ARGUMENT

The Office of Personnel Management is authorized by

statutes and Presidential executive orders that pre-date

the Civil Service Reform Act to regulate suitability and to

The Aguzie and Barnes petitions failed to meet the

Board's criteria for review. Aguzie, 112 M.S.P.R. at 277;

Barnes, 112 M.S.P.R. at 274. Accordingly, OPM requests

that after the Board resolves the two questions presented

in OPM's favor, it should do no more than issue final

orders under 5 C.F.R. § 1201.113(c) informing the

appellants of their right to judicial review under 5 U.S.C.

§ 7703. However, petitions for review are still pending in

the Hunt-O'Neal and Scott appeals, and after the Board

resolves the two questions presented, it should order

additional briefing to allow OPM to address those petitions

for review on the merits.

OPM notes that additional cases have been stayed

before Judge Weiss of the Board's Office of Regional

Operations pending the outcome of this litigation, and

after the Board resolves the two questions presented, it

should order Judge Weiss to lift the stays.
direct the removal of an employee who is disqualified on

suitability grounds. OPM's suitability regulations in 5

C.F.R. Part 731 and OPM's adverse action regulations in 5

C.F.R. Part 752 dictate that an 0PM directed suitability

removal may not be adjudicated under the adverse action

procedures of Chapter 75. In fact, the Board's own

jurisdictional regulations in 5 C.F.R. Part 1201 are to the

same effect, precluding the Board from adjudicating a

suitability appeal as anything other than a suitability

appeal.

The 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. It is also

inconsistent with a long line of heretofore unquestioned

Board and Federal Circuit precedent under which suitability

removals have been adjudicated for decades pursuant to 5

C.F.R. Part 731, rather than 5 U.S.C. Chapter 75.

In fact, OPM-directed suitability removals and agencyinitiated adverse actions have long coexisted under civil

service law and are equally grounded in statute.

Therefore, under the Federal Circuit's ruling in Lovshin v.

Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (en

bane), the Board cannot require suitability actions to be

7
adjudicated as adverse actions. Rather, the Board must

adjudicate suitability actions under the standards and

procedures that 0PM has prescribed in Part 731.

Indeed,.it is not possible for suitability appeals

initiated by 0PM to be adjudicated under Chapter 75 as

adverse action appeals. The latter are initiated by the

employing agency and may result in penalty mitigation. By

contrast, an employing agency exercises no management

judgment in enforcing 0PM1s suitability removal order, and

may even oppose it. 0PM's regulatory enforcement interest

in taking a suitability action is not the same as the

employing agency's management interest, nor is it legally

possible to "mitigate" a directed suitability removal.

ARGUMENT

A. OPM's Broad Authority to Regulate Suitability

Actions Has a Distinct Basis in Statutes and

Executive Orders that Pre-Date Chapter 75

The authority of 0PM to initiate suitability removal

actions (and that of its predecessor, the Civil Service

Commission) has a long history whose genesis is in

statutorily-based Executive Orders that preceded the

passage of the Civil Service Reform Act of 1978 by several

decades.
Section 3302 of title 5, U.S. Code authorizes the

President to "prescribe rules governing the competitive

service" and 5 U.S.C. § 7301 authorizes the President to

"prescribe regulations for the conduct of employees in the

executive branch." Section 3301 further authorizes the

President to "prescribe such regulations for the admission

of individuals into the civil service ... as will best

promote the efficiency of that service" and to "ascertain

the fitness of applicants as to . . . character." See also

5 U.S.C. § 1104 (generally authorizing the President to

delegate to 0PM "in whole or in part, authority for

personnel management functions").

Pursuant to these authorities, President Eisenhower

issued Executive Order (E.G.) 10577 on November 22, 1954.3

Rule V of E.G. 10577 provided that "[t]he Commission

. . . . may require appointments to be made subject to

investigation to enable the Commission to determine, after

appointment, that the requirements of law or the Civil

Service Rules and Regulations have been met." It further

provided the Civil Service Commission with the authority to

direct the removal of employees who were found unsuitable

3 See E.G. 10577, auth. cit., 3 C.F.R. 218 (1954-58)

(citing the Civil Service Act of 1883, codified in relevant

part, as amended, at 5 U.S.C. § 3302, and citing R.S. 1753,

codified as amended at 5 U.S.C. §§ 3301, 7301).
for Federal employment, stating that "[wjhenever the

Commission finds that an employee serving under such an

appointment is disqualified for Federal employment, it may

instruct the agency to remove him, or to suspend him

pending an appeal from the Commission's finding . . . ."

In Executive Order 12107 of December 28, 1978, the

President modified the language of Civil Service Rule V but

its import (a delegation of independent authority governing

suitability removals) remains the same. It now reads, in

relevant part, as follows: "The Director [of 0PM] is

authorized to ensure enforcement of the civil service laws,

rules, and regulations, and all applicable Executive

orders, by ... [i]nstructing an agency to separate or

take other action against an employee serving an

appointment subject to investigation when the Director

finds that the employee is disqualified for Federal

employment." See E.G. 10577, r. V, § 5.3(a)(l), reprinted

as amended, 5 U.S.C.A. § 3301, codified as amended, 5

C.F.R. § 5.3(a)(1).

In addition to authorizing 0PM to direct an agency to

remove an employee found unsuitable for employment, Rule V

delegates broad rulemaking and enforcement authority to

0PM. It states that 0PM "shall promulgate and enforce

regulations necessary to carry out the provisions of the

10
Civil Service Act . . . , the Civil Service Rules, and all

other statutes and Executive orders conferring

responsibilities on the Office." Civil Service Rule V,

§ 5.1, reprinted as amended, 5 U.S.C.A. § 3301, codified as

amended, 5 C.F.R. § 5.I.4

The suitability rulemaking authority the President

delegated in E.G. 10577 is complemented by independent

statutory grants of rulemaking authority to 0PM. Thus,

0PM's suitability regulations also cite as authority, 5

U.S.C. § 1302, a provision of the Civil Service Act which

directs 0PM, "subject to the rules prescribed by the

President under this title for the administration of the

competitive service," to "prescribe regulations for,

4 Other Civil Service Rules under E.G. 10577, as

amended, address 0PM's suitability standard-setting and

suitability investigative authority. See 5 C.F.R.

§§ 2.1(a), 5.2(a). See also section 8(b) of E.G. 10450 of

April 27, 1953, 3 C.F.R. 936 (1949-1953), reprinted as

amended in 5 U.S.C. § 7311, making 0PM primarily

responsible for investigations of persons "entering or

employed in the competitive service;" sections 2.3(b) and

3(a)(i) of E.G. 13467 of June 30, 2008, 73 Fed. Reg. 38103

(July 2, 2008), reaffirming E.O. 10450 and 10577,

designating 0PM as "suitability executive agent," and

stating that 0PM "will continue to be responsible for

developing and implementing uniform and consistent policies

and procedures to ensure the effective, efficient, and

timely completion of investigations and adjudications

relating to determinations of suitability;" and section 5

of E.O. 13488 of January 16, 2009, 74 Fed. Reg. 4111 (Jan.

22, 2009), vesting 0PM with responsibility to promulgate

public trust reinvestigation standards "to ensure . . .

suitability for continued employment."

11
control, supervise, and preserve the records of,

examinations for the competitive service." See also, 5

U.S.C. § 1103(a)(5) (directing 0PM to "execut[e],

administer[], and enforc[e] . . . the civil service rules

and regulations of the President and the Office and the

laws governing the civil service"}; 5 U.S.C. § 1104(b)(3)

(separately directing 0PM "to ensure compliance with the

civil service laws, rules, and regulations" independent of

any delegation by the President or by OPM under subsection

(a)}.

B. OPM's Regulations, as Well as Those of the MSPB

Distinguish Between OPM Initiated Suitability

Removals and Adverse Actions Taken By Employing

Agencies

OPM's regulations implementing its suitability removal

authority reflect its distinct basis and differentiate such

removals from those that find their basis in Chapter 75.

Indeed, the MSPB's own regulations recognize the same

distinction.

OPM's suitability regulations are contained at 5

C.F.R. Part 731. They provide that OPM may "take a

suitability action . . . against an employee based on the

criteria of § 731.202(b)(3), (4), or (8)." 5 C.F.R.

12
§ 731.105{d). An "employee" is defined as "a person who

has completed the first year of a subject-to-investigation

appointment," and a "suitability action" includes a

"[rjemoval." 5 C.F.R. §§ 731.10Kb), 731. 203 (a) (2) .

The procedures that apply to 0PM initiated suitability

actions are set forth at 5 C.F.R. Part 731, Subpart C. The

MSPB's jurisdiction over 0PM initiated suitability actions

is provided by 5 C.F.R. Part 731, Subpart E. As the

Federal Circuit has recognized, the Board's jurisdiction

over suitability appeals "is not plenary, but is limited to

those matters over which it has been given jurisdiction by

law, rule, or regulation . . . ." Folio v. Dep't of

Homeland Sec., 402 F.3d 1350, 1353 (Fed. Cir. 2005).

Section 731.501 "was promulgated by 0PM and . . . Congress

granted 0PM the authority to define the scope of the

Board's authority." Folio, 402 F.3d at 1355.5

5 OPM amended section 731.501 in 2008. The Board

appears to ask whether OPM, in amending its regulations,

intended to alter the Federal Circuit's conclusion in Folio

that the Board lacks jurisdiction to review the

appropriateness of the suitability action taken. Aguzie,

112 M.S.P.R. at 277 n.l. Although not directly relevant to

the question presented in this appeal, the answer is that

OPM intended no such thing. OPM amended the regulation to

state that a suitability "action" was appealable to the

Board (i.e., that a final agency action triggers the right

of appeal), but the supplementary information does not

state OPM intended to expand the Board's jurisdiction to

allow it to review the appropriateness of the Agency's

choice of an "action." The text of the amended regulation

13
The regulations at Part 731 distinguish between the

OPM-initiated suitability actions against employees and

adverse actions taken by agencies. They provide that "an

agency may not take a suitability action against an

employee" but that "[njothing in this-part precludes an

agency from taking an adverse action against an employee

under the procedures and standards of part 752 of this

title. ..." 5 C.F.R. §731.105(e). 0PM's regulations

further state that "an action to remove an ... employee

for suitability reasons under this part is not an action

under part . . . 752 of this chapter." 5 C.F.R.

§731.203(f)(emphasis in original).

Chapter 75 of title 5 delineates the procedures that

an agency must follow and the standards that apply when it

takes an adverse action against one of its employees.

Section 7513(a) provides that "[ujnder regulations

itself precludes an expansion of the Board's jurisdiction,

since it explicitly allows the Board to review only whether

"one or more of the charges ... is supported by a

preponderance of the evidence," and explicitly allows only

0PM or the employing agency to review "whether the

suitability action taken is appropriate." See 5 C.F.R.

§ 731.501(b). Moreover, 'if 0PM had meant to alter the

Folio holding or analysis, or to give the Board appellate

jurisdiction over the appropriateness of a suitability

action, it would have stated that explicitly. 0PM, like

Congress, does not "alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions -

it does not, one might say, hide elephants in mouseholes."

Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468

(2001).

14
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."

0PM's regulations implementing this authority for

agency-initiated adverse actions are codified at 5 C.F.R.

Part 752. As those regulations specify, Chapter 75's

adverse action procedures do not apply to actions "taken or

directed by the Office of Personnel Management under part

731 ... of this chapter." 5 C.F.R. 752.401(b) (10); see

also 5 C.F.R. § 731.203(f)("an action to remove an

appointee or an employee . . . under this part is not an

action under part . . . 752 of this chapter").

Finally, although the Board made no reference to its

own regulations in the Aguzie and Barnes decisions, those

regulations are consistent with 0PM's. They incorporate

the same distinction between removals effected by employing

agencies under Chapter 75 "for such cause as will promote

the efficiency of the service" (5 C.F.R. § 1201.3(a)(2)),

and "the disqualification of an employee or applicant

because of a suitability determination" ordered by 0PM or

by an agency acting pursuant to authority delegated by 0PM.

5 C.F.R. § 1201.3(a) (7), citing 5 C.F.R. § 731.501 (0PM

15
regulation granting Board jurisdiction over appeals from

suitability actions).6

C. In the Civil Service Reform Act of 1978, Congress

Ratified the Use of Separate Procedures for

Directed Suitability Removals and Adverse Actions

Notwithstanding the regulatory scheme outlined above,

in these cases the Board sua sponte suggested that the

validity of the separate suitability appeals process and of

0PM's regulations "is in doubt" because they allegedly

"purport to carve out an exception to the Board's statutory

jurisdiction under 5 U.S.C. §7513{d)." Aguzie, 112

M.S.P.R. at 279. The Board's suggestion collides, of

course, with the well-established principle that the

regulations of an agency exercising rulemaking authority

delegated to it by Congress are entitled to great

deference. Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984).

It also ignores the long line of both Board and

Federal Circuit precedent under which suitability removals

have been adjudicated for decades. See, e.g., Doerr v.

The Board's jurisdiction over suitability appeals is

derivative of 0PM's grant of a right of appeal. Moreover,

as the Federal Circuit has held, the Board is bound to its

regulation and cannot amend it through adjudication: "the

Board's regulation is the governing law and may not be

overturned by the Board outside the procedural requirements

of section 553." Tunik v. Soc. Sec. Admin., 407 F. 3d 1326,

1341 {Fed. Cir. 2005).

16
Office of Pers. Mgmt., 104 M.S.P.R. 196 (2006); Sosa v.

Office of Pers. Mgmt., 101 M.S.P.R. 583 (2006); McClain v.

Office of Pers. Mgmt., 76 M.S.P.R. 230 (1997). See also

Kissner v. Office of Personnel Management, 792 F.2d 133

(Fed. Cir. 1986); and Shelton v. Office of Personnel

Management, 42 M.S.P.R. 214, 221 (1989), aff'd, 904 F.2d 46

(Fed. Cir. 1990) (table). These removals have not been

adjudicated under the adverse action procedures set forth

in Chapter 75, but rather under Title 5, Part 731 of the

Code of Federal Regulations.7

In fact, the directed removal authority in Civil

Service Rule V has long coexisted with and does not

facially conflict with other directed and agency-initiated

removal authorities. As the Federal Circuit has

recognized, civil service rules that do not "facially

conflict" with civil service statute and that have long

"coexisted" with them have an independent vitality.

Lackhouse v. Merit Sys. Prot. Bd., 773 F.2d 313, 316 (Fed.

7 See generally Shelton, 42 M.S.P.R. at 221 (explaining

that "the Board has no precedent for applying the Douglas

case [which applies to Chapter 75 adverse actions] to

mitigate an 0PM action under 5 C.F.R. part 731, once 0PM

has determined that an employee or applicant is unsuitable

for Federal employment. Although 0PM sets forth factors it

must consider in determining whether its action under Part

731 will promote the efficiency of the service, those

factors go to the very essence of the suitability

determination in the first instance, and not to the

propriety of the 'penalty* flowing therefrom").

17
Cir. 1985). Congress is presumed to be aware of the

existence of the Civil Service Rules in enacting statutes

and, if it intends to amend or repeal them, will so

indicate. Lackhouse, 773 F.2d at 316 n.6, 317.

Here, there is not only a lack of evidence that

Congress intended to repeal Civil Service Rule V, there is

affirmative evidence that Congress ratified it. In

reauthorizing Civil Service law in the Civil Service Reform

Act of 1978, Congress directed 0PM to "execut[e],

administer!], and enforc[e]" the existing Civil Service

Rules, which would, of course, include Rule V. It further

authorized 0PM "to prescribe regulations and to ensure

compliance with" the existing Civil Service Rules.

Finally, in substituting 0PM for the Civil Service

Commission, it empowered 0PM to regulate and control

competitive examinations "subject to" the existing Civil

Service Rules, including Rule V. Pub. L. No. 95-454,

§§ 201(a), 906<a)(2)/ 92 Stat. 1111, 1119, 1121, 1224, 5

U.S.C. 1103(a) (5), 1104(b) (3), 1302(a) .

"The normal assumption, where Congress amends one part

of a law leaving another part unchanged, is that 'the two

were designed to function as parts of an integrated whole'

and each should be given 'as full a play as possible'

18
. . . . It is elementary that repeals by implication are

not favored and are permitted only to the extent of clear

repugnancy ... . Neither chapter ... is without

function nor meaningless in light of the other. They

function well as alternative procedures." Lovshin v. Dep't

of the Wavy, 767 F.2d 826, 842 (Fed. Cir. 1985) (quoting

Markham v. Cabell, 326 U.S. 404, 411 (1945) and citing

Georgia v. Pa. R.R. Co., 324 U.S. 439, 456-57 (1945)). By

analogy to Lovshin, the restriction on 0PM's authority

suggested in the Board's question "is a limitation of

sweeping proportions ... . If Congress intended such a

major change, one would expect a clear statutory provision

or at least a single specific statement by Congress to the

effect that" suitability actions could no longer be used

for removal actions. See Lovshin,. 767 F.2d at 840 (citing

St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 550

(1978)); accord, Lackhouse, 773 F.2d at 316 n.6, 317.

Thus, the notion that 0PM's suitability regulations

have carved out some exception to Chapter 75, is misguided.

The suitability removal process is based on an independent

authority that Congress intended would continue to exist

alongside the process established in Chapter 75 for agencyinitiated adverse actions.

19
The Federal Circuit's en bane decision in Lovshin

provides firm support for this conclusion. In that case,

the Federal Circuit held that the Board was not required to

use Chapter 43's procedures to adjudicate an adverse action

based on poor performance that the agency chose to bring

under Chapter 75. It noted that "Chapters 43 and 75

establish separate procedural mechanisms, both of which can

be used to obtain the objectives Congress sought in

enacting the CSRA" and that "there is no necessary conflict

in utilizing both chapters for such actions." Lovshin, 767

F.2d at 829. The Court reasoned that

 w[w]hichever action

an agency chooses to pursue, it will have to comply with

the procedural requirements of that Chapter." Thus, "[i]f

an agency sees some advantage in pursuing performance-based

action under Chapter 75, it is not inconsistent with the

Act so long as the agency meets the higher burden of proofand the more difficult standard of demonstrating that the

action will promote "efficiency of the service'." 767 F.2d

at 837, favorably quoting Wells v. Harris, 1 M.S.P.R. 208,

249 (1979), modified in part, Gende v. Dep't of Justice, 23

M.S.P.R. 604, 610 (1984), overruled in part, 767 F.2dat

843 ) (internal quotations omitted).

Thus, as in Lovshin, the Board's suggestion here that

a suitability action must be adjudicated as an adverse

20
action, would "read into Chapter 75 a limitation which

Congress expressed nowhere in the statute itself or in the

legislative history." Lovshin, 767 F.2d at 840. It would

be similarly "a limitation of sweeping proportions," given

the fact that the Board has never purported to adjudicate

suitability appeals as adverse action appeals. Id. at 840.

There is no merit to the Board's suggestion that the

reasoning of Lovshin might not apply to suitability removal

actions because there is "no statutory provision that would

preclude a removal action ostensibly taken under 5 C.F.R.

part 731 from being adjudicated under chapter 75

standards." Aguzie, 112 M.S.P.R. at 278 n.2. First, this

observation fails to take cognizance of the independent

statutory and regulatory bases that exist for OPM-directed

suitability removals, which do, in fact, explicitly

preclude the use of Chapter 75 standards for such

suitability removals. But more to the point, even if it

were possible to bring an OPM-initiated suitability removal

action under Chapter 75 (because there was no statutory bar

to doing so) , the primary point of Lovshin is that where

there exists a choice of adjudicatory procedures, it is upto the agency initiating the action to decide which one to

follow. Under Lovshin, so long as the employee subject to

Part 731 action receives all of the procedural protections

21
applicable to that type of action, the Board has no

authority to require that it be adjudicated under Chapter

75.

Finally, in that regard, it bears noting that - on

balance - Part 731 procedures are neither more nor less

favorable to the employee than those provided by Chapter

75. Instead they are simply different because the

underlying actions themselves are different. To be sure,

in Chapter 75 appeals the Board has limited authority,

under Douglas v. Veterans Administration, 5 M.S.P.R. 280

(1981), to mitigate a penalty. Yet in a suitability action

the Board may weigh some of the same or similar factors

prescribed by 5 C.F.R. § 731.202(c) that 0PM deems

pertinent to the action and relies on, such as whether the

employee has been rehabilitated. It considers such factors

as part of the merits of the suitability action {rather

than as a penalty mitigating factor). See Folio v. Dep't

of Homeland Sec., 402 F. 3d 1350, 1353-55 (Fed. Cir. 2005).

Further, under Chapter 75 an agency may take an

adverse action against one of its employees for almost any

type of misconduct, provided that there is a nexus between

the conduct and the efficiency of the service. Under the

suitability regulations, however, 0PM not only is limited

by the substantive standard to "protect the integrity or

22
promote the efficiency of the service," but is permitted to

take action and to prove facts underlying that action only

for conduct specifically set forth in 5 C.F.R.

§ 731.202(b).

D. Under Civil Service Rule V, a Directed Removal

Cannot be an Adverse Action, Because it is Not

Initiated by the Employing Agency and Cannot be

Mitigated

Finally, in suggesting that 0PM's regulations have the

effect of carving out an exception to the Board Chapter 75

jurisdiction, the Board has failed to appreciate that

suitability procedures and adverse action procedures serve

distinct purposes under Civil Service law.

As described in detail above, OPM is the agency

charged with enforcing suitability requirements. Where OPM

directs the removal of an employee under Civil Service Rule

V, the employing agency has no alternative, because it is

in receipt of a lawful order with which it "shall comply."

5 C.F.R. § 5.3(b). The employing agency's responsibility,

when in receipt of an order to remove its employee, is

ministerial, and is not based on its own determination that

the employee's removal promotes the efficiency of the

service.

For these reasons, it would make little sense to have

an employing agency that did not take any suitability

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action against an employee {and may not have wished to take

any action) serve as a party respondent, as would be

required under Chapter 75. The result would be to hold the

agency responsible for defending an action it did not take,

under authority and standards not bestowed upon the agency

by law, and holding the agency liable if it does not

prevail.

Similarly, if an employing agency takes an adverse

action, "penalty determinations are 'judgment calls' within

the discretion of the employing agency," as "'the employing

(and not the reviewing) agency is in the best position to

judge the impact of employee misconduct upon the operations

of the agency.'" Lachance v. Devall, 178 F.3d 1246, 1251

(Fed. Cir. 1999) (quoting Beard v. Gen. Serv. Admin., 801

F.2d 1318, 1321-22 (Fed. Cir. 1986)). By contrast, in

directing an employee's removal, 0PM gives an employing

agency no discretion to tailor a penalty to the agency's

unique operational circumstances. Rather, the agency must

remove its employee or face sanctions; 0PM may certify the

Agency's failure to remove the employee to the Comptroller

General, and the employee is not entitled to be paid.

Civil Service Rule V, 5 C.F.R. § 5.3(c). Moreover, OPM's

implementing regulation in 5 C.F.R. § 731.203 (a) provides

the employing agency no alternative "penalty" that is

24
consistent with continued employment; the only other

suitability actions prescribed by regulation serve to

prevent the employment of a disqualified applicant or

employee following his nonselection or removal. See 5

C.F.R. §§ 731.203(a)(1), (3), (4) (authorizing cancellation

of eligibilities on registers and certificates,

cancellation of reinstatement eligibilities, and debarments

from examination and appointment).

Just as Civil Service Rule V recognizes that 0PM1s

interest as a regulatory enforcement agency does not

necessarily correspond with the employing agency's

management interest, 0PM's suitability regulations likewise

reflect the distinction between 0PM's and the employing

agency's interest by giving the employing agency an

opportunity to respond in opposition to suitability charges

brought by 0PM. 5 C.F.R. § 731.303{b). The Board's

suggestion — that OPM-initiated suitability appeals must be

adjudicated under Chapter 75 — obliterates these

distinctions, and should not be adopted.

E. The Remedies of Debarment and Cancellation of

Eligibilities Would Not Be Available Under

Chapter 75

The Board's second question concerned whether

debarment and cancellation of eligibilities would be

25
available if it adjudicated OPM-initiated suitability

actions under Chapter 75. The Board has authority to

adjudicate debarment and cancellation of eligibilities only

because 0PM has conferred jurisdiction upon it to do so

under Part 731. If the Board deems this case to be a

Chapter 75 action, of course, it may not reach issues not

reposed in it under Chapter 75.

As noted infra, 0PM1s suitability regulations give the

Board appellate jurisdiction over 0PM's final action in a

suitability case so that the Board may review the

appropriateness of the underlying disqualification. 0PM's

regulations do not allow the Board to review the

appropriateness of the choice of removal rather than some

other suitability action. 0PM1s exercise of discretion to

take multiple examination-related suitability actions in

concert with a directed removal does not thereby create a

multiplicity of appealable claims.

CONCLUSION

For the reasons stated in this brief, an individual

removed under Civil Service Rule V and 5 C.F.R. Part 731 is

entitled to appeal his removal under Part 731, and may not

appeal his removal under 5 U.S.C. § 7513{d). The Board

must review whether an unfavorable suitability

determination is supported by preponderant evidence under

26
the standards 0PM has prescribed in 5 C.F.R. Part 731.

When the Board sustains an unfavorable suitability

determination, the Board is foreclosed from reviewing the

appropriateness of a removal action taken pursuant to that

determination.

Respectfully submitted,

Elaine Kaplan

General Counsel

.even E. Abow

Assistant General Counsel

for Merit Systems and

Accountability

Darlene M. Carr

Agency Representative

Office of the General Counsel

Robert J. Girouard

Agency Representative

Office of the General Counsel

Enclosure: certificate of service

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