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THE OFFICE OF THE GENERAL COUNSEL

U.S. OFFICE OF PERSONNEL MANAGEMENT

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE, ) DOCKET NUMBER

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

)

V

' ) DATE:

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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
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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, 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.
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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 Sen/ice, 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 (Hi) invite the Director of OPM to Intervene in the

case in his discretion.

Respectfully submitted,

Date ELAINE KAPLAN

General Counsel

^STEVEN E. ABOW

Assistant General Counsel

Merit Systems and

Accountability Group

DARLENE M. CARR

Agency Representative