the preponderance of evidence, not “substantial evidence” as found in 5 C.F.R. part 731
suitability determinations. Id.

Guerrero v. Department of the Veterans Affairs, 105 M.S.P.R. 617, 2007
M.S.P.B. 132 (2007) is also highly relevant. An employee who had worked for
“approximately one year” was charged with falsification in Guerrero for falsifying
Federal employment forms and misrepresentations, but the case was prosecuted by the
employing agency and the employee was afforded the protections of Chapter 75 of Title
5, including consideration of the Douglas factors. 105 M.S.P.R. at 45, 11, 24.
Allowing the employee those protections enabled him to save his Federal career, for the
MSPB ruled that the employee should not have been removed and held that the employee
may have been “confused” or even “careless,” but had not intentionally misled the
agency. Id. at 14.

Another relevant case here is Cruz-Packer v. Department of Homeland Security,
102 M.S.P.R. 64, 2006 M.S.P.B. 126 (2006). Cruz-Packer ruled that 5 C.F.R. part 731
did not serve as authority for the removal of an excepted service employee,
notwithstanding the agency’s characterization of the action as a suitability determination.
102 MS.P.R. at Ff 9, 12.

There is no rational basis in these cases for discriminating between competitive
service and excepted service employees. If Part 731 cannot be used to remove an

excepted service employee, then it should not be used to remove a permanent competitive

20



would significant advantages in having suitability determinations be processed under
Chapter 75 and 5 C.F.R. part 752. First, the burden of proof utilized by the two
procedures is quite different, even though OPM omits any discussion of this. Under Part
731, mere substantial evidence is sufficient to remove an employee; under Chapter 75, an
agency must prove its charges by preponderant evidence. Second, the due process
protections of Chapter 75 are considerable, and especially so in comparison to the
expedited, summary nature of the proceedings under Part 731. Third, resort to the
Douglas factors is of critical importance, even though OPM attempts to denigrate the
importance of those factors in its argument here. Finally, having the employing agency
prosecute the charge is of critical importance: the employing agency knows the
employee, and, since we are discussing permanent Federal employees here, the
employing agency would have had at least one year in which to observe the employee
and make its own determination as to his suitability for Federal employment, as well as
having at least one year of experience with the employee, thereby having first-hand
knowledge as to the employee’s veracity, moral fiber, character and competence.

The Board anticipated OPM’s argument, and the Board’s answer to that argument
is persuasive: Lovshin differs from Aguzie in that chapter 43 and chapter 75 procedures
are, by statute, mutually exclusive. Thus an agency may prevent the Board from applying
chapter 75 standards by invoking chapter 43 for its performance-based action. By

contrast, there is no statutory provision that would preclude a removal action ostensibly

14



a

The Board recognized that OPM’s suitability regulations preclude taking a
removal action under both 5 C.F.R. Part 731 and Part 752. It further recognized that,
“To the extent [5 C.F.R.] § 731.204(f) may purport to care out an exception to the
Board’s statutory jurisdiction under 5 U.S.C. § 7513(d), the validity of the regulation is in
doubt.” Aguzie, 112 M.S.P.R. at 278-79. Based upon this analysis, the Board requested
the parties brief the issues in this proceeding.

Summary of Argument

OPM’s reliance on decades-old executive orders and regulations is misplaced —
most of the provisions on which OPM relies were superseded by the CSRA. OPM is
denying Federal employees’ significant rights, rights those employees have earned under
5 U.S.C. Chapter 75. OPM?’s current position allows for disparate treatment of Federal
employees who are charged with falsifying employment records: some are prosecuted
by OPM under Part 731, while others are prosecuted by the employing agency under Part
752. The only fair and rational resolution of this disparity is to restrict OPM’s suitability
determination proceedings to the period in which the employee is on probationary status;
once the employee becomes a permanent Federal employee, any removal for suitability
should be prosecuted by the employing agency under 5 C.F.R. part 752.

Argument

A. OPM’s argument that it has broad authority to regulate suitability
actions based upon statutes and executive orders that pre-date
Chapter 75 of Title 5 of the U.S. Code is contrary to well-established
Federal law.



service employee.

A recent case from the Federal Circuit provides further illumination. In Weidel v.
Department of Justice, 230 F.3d 1380 (table), 2000 WL 133845 (Fed. Cir. 2000) at * 4-5,
the court held that an excepted service employee who was still in probationary status was
not entitled to the protections of Chapter 75 and could properly be removed from the
Federal service pursuant to a suitability determination under Part 731. Weidel comports '
well with the great weight of authority and with Appellant Aguzie’s position here — while
OPM can properly use Part 731 to remove probationary employees, it should not be
allowed to use it in cases involving permanent Federal employees.

In sum, Mr. Aguzie was denied his civil service rights, significant rights he earned
as a permanent Federal employee. OPM’s actions in this case, as well as in the cases
discussed above, subject permanent Federal employees charged with the same conduct to
different procedures and impose different penalties. The Board should order that Mr.
Aguzie be reinstated in his previous position and that any future suitability determination

be carried out by his employing agency pursuant to Part 752.

Conclusion
OPM’s authority in suitability determinations is limited by the provisions of the
Civil Service Reform Act. The CRSA provides substantial protections to permanent
Federal employees, including consideration of the Douglas factors in removal actions.

OPM’s actions violated Appellant Aguzie’s CRSA protections and subjected Mr. Aguzie

21



Process Rights provided to permanent Federal employees by
Congress, are fundamentally unfair to permanent Federal employees,
and are contrary to well-established Federal law.

OPM’s actions and regulations here do not comport with the provisions of the
Civil Service Reform Act, as discussed in depth above. In short, under OPM’s current
regime, the protections provided to permanent Federal employees by Chapter 75 of Title
5 of the U.S. Code are disregarded.

OPM’s actions and regulations in these cases violate important due process rights
provided to permanent Federal employees by Congress. Men and women who have
faithfully and proficiently served the Federal government for over one year have earned
important due process rights provided by Congress pursuant to 5 U.S.C. § Chapter 75 and
5 CFR. part 752.

Additionally, OPM’s actions and regulations are fundamentally unfair to
permanent Federal employees. Permanent Federal employees charged with falsification
are liable for punishment under two separate procedures — under 5 C.F.R. part 731 or
pursuant to 5 C.F.R. part 752 — and can be prosecuted by two different agencies — their
employing agency of OPM. Such a framework must invariably lead to inconsistent
results in cases involving Federal employees and different treatment for Federal
employees who are in the same or similar situations.

Consistency and treating all employees the same are important goals in the

Federal civil service. As noted in Lovshin, “All federal employees should be subject to

18



that this is true. Moreover, OPM is attempting to “carve out” an exception to the rights
of permanent Federal employees as found in Chapter 75 of Title 5 of the U.S. Code.
OPM’s attempt to usurp such authority should not be countenanced.

A clear-minded review of the facts and law in these cases shows that OPM is
trying to turn Federal law and regulation on its head. OPM insists that the Board’s
theory “collides” with the principle of giving great deference to OPM’s rule-making
authority (OPM’s Brief at p. 16), but of course OPM is entitled to no deference at all
when its rule-making “collides” with the explicit terms of a Federal statute and express
Congressional intent.

In essence, OPM is trying to re-write Chapter 75 of Title 5 of the U.S. Code. It
does not have the authority to do so.

OPM next claims that the Board is “ignor[ing] the long line of both Board and
Federal Circuit precedent under which suitability removals have been adjudicated for
decades.” OPM Brief at p. 16. With all respect, Appellant Aguzie asserts that it is
OPM which is ignoring the long line of both Board and Federal Circuit precedent under
which suitability removals have been adjudicated for decades.

In fact, the cases OPM cites on this point inveigh in favor of the Board’s action in
Aguzie. OPM cites five cases in support of its argument, but provides no discussion of
the cases other than a cursory footnote review of an irrelevant point of one case.

Appellant Aguzie will address each case in some detail.

10



OPM argues that the CRSA had no effect on E.O. 10577, such an argument runs counter
to rules of statutory construction.

Moreover, E.O. 10577 is made explicitly subject to “the requirements of law
[and] the Civil Service Rules and Regulations.” Certainly, “the requirements of law”
include Chapter 75 of Title 5 of the U.S. Code, and “the Civil Service Rules and
Regulations” include 5 C.F.R. part 752, which incorporates 5 U.S.C. Chapter 75,
subchapter II, in its entirety.

The second executive order cited by OPM, E.O. 12107 of December 28, 1978, is
likewise explicitly subject to “the civil service laws, rules, and regulations.” These
“civil service laws, rules, and regulations” of course include Chapter 75 of Title 5 of the
USS. Code, and they also include 5 C.F.R. part 752, which incorporates 5 U.S.C. Chapter
75, subchapter II, in its entirety?

OPM then discusses its rule-making powers under 5 C.F.R. §§ 1103, 1104, and

3 By its very terms, E.O. 12107 is made subject to the CSRA. Section
2-402 provides: “Continuing Effect of this Order. Except as required by the Civil Service
Reform Act of 1978 as its provisions become effective, in accord with Section 7135 of
Title 5, United States Code, as amended, and in accord with Section 902(a) of that Act,
the provisions of this Order shall continue in effect, according to its terms, until modified,
terminated or suspended.” In turn, 5 U.S.C. § 7135(b) explicitly states that previous

regulations remain in effect “unless superseded by specific provisions of this chapter.”
7



OPM’s primary argument in this case is that it has broad authority to regulate
suitability actions based upon statutes and executive orders that pre-date Chapter 75 of
Title 5 of the U.S. Code. This argument ignores the fact that the executive orders and
statutes upon which OPM’s relies were superseded in part by the passage of the Civil
Service Reform Act of 1978 (“CSRA” or “Civil Service Reform Act”), which includes
Chapter 75.

OPM is arguing, in essence, that passage of the CRSA had no effect on suitability
determinations for permanent Federal employees. However, if Congress had intended to
exclude OPM’s suitability determinations from the CRSA it would have so stated it
would seem. Since Congress did not exclude OPM’s suitability determinations from the
CRSA, it follows that OPM’s suitability determinations are subject to the CRSA,
including Chapter 75 of Title 5 of the U.S. Code.

Second, the executive orders upon which OPM relies are each made explicitly
subject to “the civil service laws.” “The civil service laws” include Chapter 75 of Title 5
of the U.S. Code. Moreover, an executive order cannot amend a statute passed by
Congress and signed into law by the president. In essence, in these cases OPM is
seeking to re-write the CSRA and to make itself the sole and final arbiter of the rights of
permanent Federal employees.

OPM goes all the way back to the Civil Service Act of 1883 in citing President

Eisenhower's Executive Order (E.O.) 10577 and Rule V promulgated thereunder. While
6



some degree to a uniform disciplinary system ..” 767 F.2d at 843. The following cases
highlight instances in which OPM’s current position has led to inconsistent results and
different treatment for Federal employees who are in the same or similar situations.

In Naekel v. Department of Transportation, 782 F.2d 975 (Fed. Cir. 1986), an
employee was accused of making false statements on several SF 171 forms regarding the
basis for his departure from’a previous job. After the removal was upheld by the MSPB,
the Federal Circuit reversed and held that the agency had failed to prove its charge of
falsification by a preponderance of the evidence. 782 F.2d at 977-78. Even though the
employee in Naekel had only been employed for about six months at the time of his
removal for falsification, the charge was prosecuted by his employing agency, not OPM,
and apparently was processed under 5 C.F.R. part 752, not 5 CFR. part 731, since the
standard of proof required was the preponderance of evidence, not “substantial evidence”
as found in Part 731 suitability determinations.

In Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002), the Federal
Circuit again held that the agency failed to prove that the employee had acted with intent
to defraud, deceive, or mislead the agency in submitting an official report. 288 F.3d at
1308-09. While the employee in Haebe was charged with falsification, and not subject
to a suitability determination, Haebe still bears relevance here since the falsification
charge was prosecuted by his employing agency, not OPM, and apparently was processed

under 5 C.F.R. part 752, not 5 C.F.R. part 731, since the standard of proof required was

19



Folio is easily distinguishable from the instant case because Mr. Folio was merely an
applicant for a Federal job, 402 F.3d at 1352, while Mr. Aguzie was a permanent Federal
employee. Since the issue presented in this case deals with the rights of a permanent
Federal employee, Folio bears little if any relevance to the analysis here, except to show
that the current position held by OPM is untenable.

Therefore, OPM’s argument is a tacit admission that its powers are not infinite,
and OPM’s admits that its powers are expressly limited by the “the civil service laws.”
OPM’s removal of Mr. Aguzie did not comport with “the civil service laws.”
Accordingly, OPM’s actions violated Mr. Aguzie’s rights, and Mr. Aguzie should be
reinstated to his position, with any further proceedings on a suitability determination to
be taken by his employing agency under Chapter 75 of Title 5 and 5 C.F.R. part 752.

on In the Civil Service Reform Act of 1978, Congress ratified the use of

separate procedures for directed suitability removals and adverse
actions, but Congress also provided significant due process
protections for permanent Federal employees in the CRSA.

OPM’s third argument is that, in enacting the Civil Service Reform Act of 1978,
Congress ratified the use of separate procedures for directed suitability removals and
adverse actions, but OPM ignores the key fact also contained in the CSRA: Congress
also provided significant due process protections for permanent Federal employees
pursuant to Chapter 75 of Title 5.

OPM disputes the Board’s analysis that, in essence, OPM is seeking to “carve

out” an exception to the Board’s authority under 5 U.S.C. § 7513, but there is no doubt
9 :



a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 3
=
z§

Hyginus U. Aguzie, Holley C. Barnes, Docket Numbers: = 1
Jones Ella Hunt-O’Neal, and James yo oO
A. Scott, DC-0731-09-0261-R-1 82
DC-0731-09-0260-R-1 2s
Appellants, AT-0731-09-0240-I-1 w@
CH-0731-09-0578-I-1 n

ve

Office of Personnel Management,

Agency.

Le ewer

BRIEF OF APPELLANT HYGINUS U. AGUZIE

Appellant Hyginus U. Aguzie (“Aguzie”), by and through undersigned counsel,
respectfully submits this brief in response to the brief filed by the Office of Personnel
Management (“OPM”). Mr. Aguzie was a permanent Federal employee who was
removed from his employment by OPM pursuant to an expedited, summary process using
a suitability determination under C.F.R. part 731.

On September 3, 2009, the Merit Systems Protection Board (“the MSPB” or “the
Board”) ruled that using a 5 C.F.R. part 731 suitability determination to remove a
permanent Federal employee may conflict with the due process protections found in 5
C.F.R. part 752. Aguzie v. Office of Personnel Management, 112 M.S.P.R. 276, 2009
M.S.P.B. 177 §f 4-7 (2009) (“dguzie”). Even though Mr. Aguzie was a permanent

Federal employee, OPM did not honor his due process rights under 5 C.F.R. part 752,
1 :

adSwW d3Atao3u



in this matter. Kissner applied the Douglas factors in analyzing OPM’s actions, 792
F.2d at 134-35, and, while it is not made explicit by the discussion in Kissner, if OPM
had proceeded under Part 731 in Kissner, the Douglas factors would not have been
relevant.

Therefore, even using OPM’s cases, it is abundantly clear that in many cases
involving permanent Federal employees, suitability removals are processed under 5
C.F.R. part 752 and include consideration of the Douglas factors. Accordingly, as to the
issues presented in Mr. Aguzie’s appeal, his suitability determination should be processed
under 5 C.F.R. part 752 and the Douglas factors should be considered.

OPM then cites Lackhouse v. Merit Systems Protection Board, 773 F.2d 313 (Fed.
Cir. 1985), in support of its argument on this point, but OPM ignores the fundamental
holding of Lackhouse: Lackhouse ruled that the MSPB “did have that precise authority”
to overturn a rule promulgated by OPM. 773 F.2d at 315. In this case, as is Lackhouse,
OPM’s rules “facially conflict” with the civil service statutes — in particular, Chapter 75
of Title 5 of the U.S. Code.

OPM next discusses Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir.
1985), but, once again, misconstrues the holdings in Lovshin. Among other rulings,
Lovshin held that, “Chapter 75 was revised to spell out with greater particularity the
procedural rights of employees when action is taken thereunder. The minimum rights to

which an employee is entitled are set out in § 7513(b), which need not be discussed

12



Two of OPM’s cases do not provide sufficient facts to determine whether the
employee involved was a permanent Federal employee, Doerr v. Office of Personnel
Management, 104 M.S.P.R. 196, 2006 M.S.P.B. 347 (2006) and Sosa v. Office of
Personnel Management, 101 M.S.P.R. 583, 2006 M.S.P.B. 101 (2006). Doerr and Sosa
each reviewed OPM’s use of 5 C.F.R. part 731 in suitability determinations, but the facts
provided in the cases do not allow one to ascertain the status of the employee involved,

McClain v. Office of Personnel Management, 76 M.S.P.R. 230 (1997), cited by
OPM here, clearly supports Appellant Aguzie’s position. The employee involved in
McClain had served less than eight months before OPM issued its suitability
determination pursuant to 5°C.F.R. part 731. 76 M.S.P.R. at 234. This fact fits nicely
with Appellant Aguzie’s position, that Part 731 is properly used in suitability
determinations for non-permanent Federal employees.

Shelton v. Office of Personnel Management, 42 M.S.P.R. 214 (1989), also cited
by OPM, supports Appellant Aguzie’s position in that it shows how confusing OPM’s
practice has become. The Shelton case bounced back and forth between the MSPB and
the Federal Circuit, and both tribunals at various times applied the Douglas factors in the
case. 42 M.S.P.R. at 216-17, 220-21. The status of the employee in Shelton is not
ascertainable, but his suitability determination was processed by OPM under Part 731.

OPM’s fifth and final case cited here, Kissner v. Office of Personnel

Management, 792 F.2d 133 (Fed. Cir. 1986), also supports Appellant Aguzie’s argument

11



1302, which, again, explicitly limit OPM’s rule-making authority “to ensure compliance
with the civil service laws...” And again, the civil service laws include Chapter 75 of
Title 5 of the U.S. Code.

OPM ends its discussion of its first point without a conclusion, but Appellant
Aguzie will provide the only valid conclusion possible. OPM’s executive orders and
rule-making authority are explicitly subject to the civil service statutes and regulations.
Since Chapter 75 of Title 5 of the U.S. Code and 5 C.F.R. part 752 are civil service
statutes and regulations, the provisions of Chapter 75 and part 752 clearly apply in this
matter,

B. OPM’s regulations, as well as the MSPB’s, distinguish between
OPM.-initiated suitability removals and adverse actions taken by
employing agencies, and this distinction is based upon the employee’s
status, i.e., permanent Federal employees are entitled to the
protections of Chapter 75 of Title 5 of the U.S. Code.

OPM’s second argument here is valid as far as it goes — i.e., that its regulations,
distinguish between OPM-initiated suitability removals and adverse actions taken by
employing agencies. However, OPM does not recognize that the distinction between
OPM.-initiated suitability removals and adverse actions taken by employing agencies are
based upon the employee’s status: permanent Federal employees are entitled to the
protections of Chapter 75 of Title 5 of the U.S. Code.

The only case cited by OPM on this point, Folio v. Department of Homeland

Security, 402 F.3d 1350 (Fed. Cir. 2005), supports Appellant Aguzie’s position here.

8



Washington, D.C, 20415-1300

Joyce B. Harris-Tounkara, Esq.
Office of Personnel Management
Office of General Counsel

1900 E Street, N.W., Room 7353
Washington, D.C. 20415-1300

Robert J. Girouard, Esq.

Office of Personnel Management
Office of General Counsel

1900 E Street, N.W., Room 7353
Washington, D.C. 20415-1300

Jeffrey G. Letts, Esq.
P.O. Box 77062
Trenton, NJ 08628

James A. Scott

Jenee Ella ~

Holley C. Barnes



md

held a competitive service position and had completed his one-year probationary period;
the Board then concluded that Mr. Aguzie “therefore satisfies the definition of an
‘employee’ at 5 U.S.C. § 7511(a)(1)(A).” Aguzie, 112 M.S.P.R. at 278.

The Board noted that, “with certain exceptions not applicable here, a removal [of
a permanent competitive service employee] falls within the scope of 5 U.S.C. Chapter 75,
subchapter Il.” Aguzie, 112 M.S.P.R. at 278. Further, the Board noted, “An employee
against whom such an action is taken is entitled to certain procedural protections, listed at
§ 7513(b).” Id. Therefore, the Board concluded, “notwithstanding OPM’s
characterization of the removal as an action under 5 C.F.R. part 731,” Mr. Aguzie may
have a statutory right to appeal his removal as an adverse action under chapter 75,
subchapter II.” Id.

As the Board recognized, “The 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
MS.P.R. at 278. The Board’s Chapter 75 jurisdiction includes that authority to mitigate
penalties under the factors articulated in Douglas v. Veterans Administration, 5 M.S.P.R
280, 296 (1981) (“Douglas”). In 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. In addition, the respondent in an adverse
action under Chapter 75 would be the employing agency, not OPM. Aguzie, 112
M.S.P.R. at 278.

4


taken under 5 C.F.R, part 731 from being adjudicated under chapter 75 standards.
Aguzie, 110 M.S.P.R. at 278 n. 2.

In conclusion, OPM’s argument is misguided and misconstrues the statutory and
regulatory framework of the civil service system. The CRSA provided significant due
process protections to permanent Federal employees, and OPM should not be permitted
to do an end run around those protections by using a suitability determination under Part
731.

D. OPM is trying to carve out an exception to Chapter 75 of Title 5 of the

U.S. Code, and no matter how many ways OPM attempts to spin the
story here, OPM is acting contrary to well-established Federal law.

OPM, in its last substantive argument, accuses the MSPB of falsely analyzing
OPM’s rationale in these cases. The MSPB has the essence of these cases exactly right:
OPM is trying to carve out an exception to Chapter 75 of Title 5 of the U.S. Code.

If being a permanent Federal employee means anything — and it does — it must
mean that the protections of 5 C.F.R. part 752 and 5 U.S.C. Chapter 75, provided by
Congress and earned by Federal employees, be honored. No matter how many ways
OPM attempts to spin the facts, its OPM’s position is contrary to well-established Federal
law.

OPM submitted a 27-page brief, yet it never mentioned the real reason we are
here: OPM is simply failing to process Federal employees in a prompt and efficient

manner. OPM may have become more detailed in its suitability determinations, or it

15



entitled to the protections of 5 C.F.R. part 752 and 5 U.S.C. Chapter 75. Any removal

action taken pursuant to a suitability determination against a permanent Federal employee

should adhere to those standards. Accordingly, once a Federal employee has earned the

status of a permanent Federal employee, any attempt to remove him from his Federal

career should be required to be taken under 5 C.F.R. part 752 and 5 U.S.C. Chapter 75.

E. The remedies of debarment and cancellation of eligibilities would still

be available to OPM for Federal employees who have not earned
permanent Federal employment status.

OPM’s final argument in this case is directed to the Board’s second question, ie.,
would debarment and cancellation of eligibilities be available if OPM- initiated suitability
determinations were adjudicated before the Board under Chapter 75. This question is
best answered with reference to the reasoning immediately above: if OPM made its
suitability determination within one year of the employee’s start date, then debarment and
cancellation of eligibilities would be available; if OPM failed to make its suitability

determination within one year of the employee’s start date, then debarment and
cancellation of eligibilities would not be available.
Pererrry
Appellant Aguzie provides the following discussion of issues that were not
discussed by OPM but which are critical to a proper determination of the issues
presented.

BE OPM?’s actions and regulations here do not comport with the
provisions of the Civil Service Reform Act, violate important Due

17



In May of 2006, Mr. Aguzie was hired as a Budget Analyst (GS 09) at the U.S.
Commission on Civil Rights, where he worked for over two and a half years. On
December 15, 2008, OPM issued a Final Decision Letter in its suitability in which it
ordered Mr. Aguzie’s removal from the Federal service. Id. OPM made one charge in
its determination, that Mr. Aguzie made a “material, intentional false statement” on two
Federal employment forms, a SF 85P and an Official Form 306.

The alleged false statement related to the terms of Mr. Aguzie’s departure from a
previous employer, QED Mr. Aguzie stated that he had le»
under unfavorable circumstances, because he resigned after MIENMMEEEBrcfused to
grant him leave to travel to@§l—Po make arrangements for higny funeral and to
tie up her financial affairs. .A supervisor at@@MMBstated that he had fired Mr.
Aguzie, but SB could not provide any written evidence or supporting
documentation. Despite this conflicting evidence presented at Mr. Aguzie’s hearing
before an administrative judge, the judge ruled against Mr. Aguzie. This appeal to the
MSPB. followed.

B. The Board’s Decisions.

The Board’s decisions in Aguzie and Barnes resulted in this briefing, to “address
the question ... of whether the appellant is entitled to appeal his 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; see also Barnes, 112 M.S.P.R. at 275. The Board observed that Mr. Aguzie

3


ao

which incorporates 5 U.S.C. Chapter 75, subchapter II, in its entirety! OPM
subsequently requested that the Board reopen the Aguzie appeal and allow the parties to
brief the issues. The Board granted OPM’s request, and this briefing followed.”
Questions Presented
1 Whether the appellant is entitled to invoke the adverse action procedures of 5
U.S.C. § 7513(d) to appeal his/her removal, notwithstanding that the removal was ,
ordered by OPM 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.
Statement of the Case

A. Background.

' Chapter 75 provides Federal employees with due process protections, see 5
U.S.C. § 7513, and a Chapter 75 removal also entails consideration of the Douglas v.
Veterans Administration, 5 MS.P.B. 313, 5 M.S.P.R. 280, 296 (1981) factors.

2 Aguzie was consolidated with Holley C. Barnes v. Office of Personnel
Management, No. CH-0731-09-0260-R-1 and with OPM’s appeal in the case entitled
James A. Scott v. Office of Personnel Management, No. CH-0731-09-0578-I-1 on
October 15, 2009. On October 22, 2009, the Board consolidated Aguzie, Barnes, and
Scott with OPM’s appeal in the case entitled Jenee Ella Hunt-O’Neal v. Office of

Personnel Management, No. AT-0731-09-0240-I-1.
2



here.” 767 F.2d 834-35.

In this case, OPM is arguing that it should be permitted to ignore the protections
afforded to permanent Federal employees by Chapter 75, even though Lovshin also held
that an employee’s “substantive rights” under the civil service laws may not be abridged
by an agency’s use of different rules and procedure regarding discipline. 767 F.2d at
841-42. In this case, Mr. Aguzie’s substantive rights under 5 U.S.C. § 7513 were
abridged by OPM’s use of Part 731 to remove him from the Federal service. Asa
permanent Federal employee, Mr. Aguzie was entitled to the protections of Chapter 75,
and, since OPM’s actions violated Mr. Aguzie’s rights, Mr. Aguzie should be allowed to
asset his Chapter 75 rights in this and in any subsequent proceeding.

OPM ignores the fact that it has every right to use Part 731 to remove a Federal
employee pursuant to a suitability determination, but only if it acts before the employee
earns permanent status. Once a Federal employee earns permanent status, he can be
removed only in cases in which his Chapter 75 rights have been honored.

OPM?’s final argument on this point is another gambit that does not pass the
straight face test. OPM argues that, “on balance — Part 731 procedures are neither more
nor less favorable to the employee than those provided by Chapter 75.” OPM Brief at p.
22. If such were the case, why is OPM expending such effort, time, and resources on
this case in an attempt to seek approval for its use of Part 731?

Any impartial observer would acknowledge that permanent Federal employees

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may simply be inefficient, but the fact is no Federal employee should be held hostage to
OPM’s dilatory suitability determinations.

Taking OPM’s position a bit further, one can foresee a situation in which OPM
decides to remove a Federal employee pursuant to a suitability determination ten or
fifteen years after the employee began his Federal service. Or, OPM could wait until a
day before a Federal employee retires from a distinguished 30-year Federal career, decide
the employee was not suitable, and remove him from the Federal service using its
expedited, summary suitability procedures, That is simply not fair. It is also contrary to
the spirit and letter of the Federal civil service statutes and regulations.

Appellant Aguzie proposes a bright-line test that would be both fair and in accord
with the spirit and letter of the Federal civil service statutes and regulations: OPM has
one year from the date an employee starts his Federal service in which to render a
suitability determination. Should OPM fail to act within that time period, any suitability
issues would have to be determined by the employing agency under the procedures
enunciated in 5 C.F.R. part 752 and 5 U.S.C. Chapter 75.

Appellant Aguzie’s solution is the only fair resolution of this issue. Moreover, it
is the only resolution that is in accord with the spirit and letter of the Federal civil service
statutes and regulations.

In conclusion, permanent Federal employees should not have their careers made

subject to OPM’s dilatory suitability determinations. Permanent Federal employees are

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