Office of Personnel Management Review on Remand
Office of the General Counsel

1900 E. Street, N.W., Suite 7350

Washington, DC 20415

USA

Pleading Number QM = Submission date : 2010-08-31 20:15:34 Confirmation Numbe MND page 20 of 20


devolves from 5 U.S.C. § 3301, Subpart 731 must be limited in scope and application to
individuals seeking to be admitted into the civil service, or else to “applicants” as discussed
immediately below. Again, the Appellant and non-probationary civil servants are not seeking to
be admitted to the federal civil service. Therefore, to the extent 5 C.F.R. Subpart 731 allows
OPM to make suitability determinations of non-probationary employees, such regulations exceed

OPM’s claimed statutory authority.

Oxford dictionary on-line defines “applicant” as follows: “a person who makes a formal

application for something, typically a job.” — (http://oxforddictionaries.com/view/entry/

m_en_us1222523#m_en_us1222523). Merriam-Webster on-line dictionary defines “applicant”

«

as follows: one who applies <a job  applicant>.” —_(http:/www.merriam-

webster.com/dictionary/applicant).

Neither the Applicant nor other non-probationary employees were applying to become civil
service employees; that status had already been attained by them when they were selected for
employment and appointed to their positions. Because OPM claims that its right to promulgate 5
C.F.R. Subpart 731 devolves from 5 U.S.C. § 3301, Subpart 731 must be limited in scope and
application to individuals who are “applying” to become federal civil service employees. The
Appellant and non-probationary civil servants are not “applying” to become federal civil service
employees; they had already attained that status. Therefore to the extent 5 C.F.R. Subpart 731
allows OPM to make suitability determinations of non-probationary employees, such regulations

exceed OPM’s claimed statutory authority.

ll

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the U.S. Office of Personnel Management (OPM) found Ms. Barnes unsuitable for her position.'
OPM directed CIS to remove Appellant from her position, canceled Appellant’s eligibility on
any existing registers, canceled any pending applications she may have had, and debarred her
from another competitive service position for a period of three years, ending December 2, 2011.
(See Initial Decision, April 27, 2009, at 2). The Appellant’s appointment with CIS was subject
to a 1-year probationary period. (See Opinion and Order, September 3, 2009, at 2). At the time
CIS removed Ms. Barnes at OPM’s direction, she occupied a competitive service position and
had completed her 1-year probationary period. Jd. at 3. Consequently, at the time of her
removal, the Appellant satisfied the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A).
Id.

Ms. Barnes removal and debarment were sustained by an administrative judge, pursuant to Board
jurisdiction conferred by OPM at 5 C.F.R. § 731.501(a).? On Petition for Review, the Board
found no error in the administrative judge’s initial decision. However, sua sponte, the Board
reopened and remanded the case to address the viability of OPM’s suitability regulations, as they
apply to non-probationary employees, set out above. OPM moved to reopen the instant appeal,
along with the appeal in Aguzie v. OPM, No. DC-0731-09-0260-B-1, arguing that due to the
legal significance of the issues of first impression presented, the Board itself should decide the
issue without remand to the administrative judge. The Board granted OPM’s Motion to Reopen

on October 15, 2009.

* OPM’s unsuitability determination was based on an allegation that the Appellant provided false
information on her employment documents with respect to her education background.

? Under 5 C.F.R. § 731.501, MSPB’s authority is limited to a determination as to whether OPM’s
determination of unsuitability is proven by preponderant evidence. Subsequently, the Board has
no authority to review the determination as to what action is appropriate based on the
unsuitability determination.

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The unified penalty theory also applies when one of the proposed penalties, in-and-of-itself,
would not invoke appeal rights under §7512. For example, a 14-day suspension is reviewable by
the Board as part of a unified penalty. Campbell v. Dept. of Veterans Affairs, 93 M.S.P.R. 70, 73
(2002). It is evident that OPM’s intended penalties oft 1.) removal; 2.) cancellation of
reinstatement eligibility; and 3.) debarment from competition for any covered position for three
years, stem from the same set of circumstances, namely, OPM’s finding that Appellant was not
suitable for her position. As such, the Board has jurisdiction over these penalties as part of
Appellant’s adverse action appeal.

IV.
CONCLUSION

For all of the foregoing reasons, the Board should hold that OPM’s regulations at 5 C.F.R.
Subpart 731 are invalid to the extent that such regulations allow OPM to direct federal agencies
to remove non-probationary in contravention of their full substantive and procedural rights under
5 U.S.C. Chapter 75. The removal of the Appellant should be reversed.

August 31, 2010 Respectfully submitted,

Mle ld el

Joseph V. Kaplan |

SQA

Daniel T. Raposa

Passman & Kaplan, P.C.

1090 Vermont Ave., N.W., Suite 500
Washington, DC 20005

TEL: 202-789-0100

FAX: 202-789-0101

Attorneys for the Appellant

1S

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The statute is also clear that the personnel action in this case -- a removal -- is appealable to
the Board as an adverse action; a removal for “unsuitability” is not among the listed statutory
exceptions. As 5 U.S.C. §7512(1) plainly states -- and could not state it any plainer --
subchapter II of 5 U.S.C. Chapter 75 applies to removals:
Sec. 7512. Actions covered
This subchapter applies to--
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
(Emphasis added).
Moreover, 5 U.S.C. §7512 also specifically enumerates which actions are not covered under the
statute, and they include:
(A)a suspension or removal under section 7532 of this title, (B) a reduction-in-
force action under section 3502 of this title, (C) the reduction in grade ofa
supervisor or manager who has not completed the probationary period under
section 3321(a)(2) of this title if such reduction is to the grade held
immediately before becoming such a supervisor or manager, (D) a reduction
in grade or removal under section 4303 of this title, or (E) an action initiated
under section 1215 or 7521 of this title. See 5 U.S.C. § 7512.
Appellant’s removal does not fall within any of the explicit exemptions in §7512. Therefore
Appellant’s removal is within the Board’s jurisdiction under § 7513(a) and can only be taken for

such cause as “will promote the efficiency of the service,” as that term has been interpreted and

applied by the Board and its reviewing court.

Because Appellant meets the statutory definition of an “employee,” and because her removal

falls within the list of enumerated adverse actions, she is entitled to bring her appeal under

Chapter 75. Section 7513(d) makes clear that “an employee against whom an action is taken

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The Text of 5 U.S.C. § Chapter 75, Granting Appellant Board Jurisdiction of Her
Removal as an Adverse Action is Plain and Unambiguous on its Face. Therefore,
Appellant is Entitled to Appeal her Removal for Suitability Reasons Under 5 U.S.C.
§7513(d) as Any Other Adverse Action.

The plain language of Chapter 75 grants Appellant an unconditional right to appeal her removal
under 5 U.S.C. §7513(d). It is a well-established principle of statutory construction that, “[t]he
starting point for statutory interpretation is the language of the statute.” Bull v. United States,
479 F.3d 1365, 1376 (Fed. Cir. 2007). Importantly, when the text of the statute provides a clear
meaning or answer to the question at issue, the inquiry ends, and the interpretation does not
pause to consider other tools of statutory construction, including the statute’s structure, the
canons of statutory construction, and legislative history. Jd. In these cases, where the statute’s
text is plain and unambiguous, the statute must be applied according to its terms. Carcieri v.
Dep't. of the Interior, 129 S.Ct. 1058 (2009). Applying these rules of statutory construction to
the instant case, it is apparent that Chapter 75 grants Appellant the right to appeal her removal

for suitability reasons under that statute.

1.
5 U.S.C Chapter 75 expressly establishes the right of Appellant
to appeal her removal as adverse actions to the Board

In pertinent part, 5 U.S.C. § 7513 provides:

(a) Under regulations 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.

(b) An employee against whom an action is proposed is entitled to--

(1) at least 30 days’ advance written notice, unless there is reasonable cause
to believe the employee has committed a crime for which a sentence of
imprisonment may be imposed, stating the specific reasons for the proposed
action;

(2) a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in support of the
answer;

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Il.
ARGUMENT

WHEN OPM DIRECTS AN AGENCY TO REMOVE A TENURED
EMPLOYEE FOR SUITABILITY REASONS, THE BOARD MUST
CONSIDER THE APPEAL UNDER 5 U.S.C. CHAPTER 75 BECAUSE
OPM IS WITHOUT AUTHORITY TO LIMIT STATUTORY RIGHTS. THE
BOARD ALSO HAS JURISDICTION OVER APPELLANT’S DEBARRMENT
FROM FEDERAL SERVICE
Basic principles of statutory construction dictate that Appellant Holley Barnes is entitled to
appeal her removal under Chapter 75. It is a fundamental precept of statutory construction that,
when a “statute’s text is plain and unambiguous, the statute must be applied according to its
terms.” United States v. Gonzales, 520 U.S. 1, 4 (1997); Dodd v. United States, 545 U.S. 353,
359 (2005). As discussed below, 5 U.S.C. Chapter 75 plainly and unambiguously applies to
Appellant’s removal. OPM cannot short-circuit or circumvent the Appellant’s Chapter 75 rights.
OPM is also unable to deny Appellant’s Chapter 75 rights due to the “general prohibition”
against implying exceptions into the reading of a statute. Andrus v. Glover Construction
Company, 466 U.S. 608, 616-17 (1980). As a plain reading of the statute reveals, there is no
exception to the right of non-probationary employees to appeal their removals on unsuitability
grounds to the Board under Chapter 75. Moreover, OPM’s exceeded its rule-making authority in

that 5 C.F.R. Subpart 731 outsteps the statutory grant of rule-making rights under 5 U.S.C. §

3301.

Lastly, Appellant’s appeals of the debarment and cancellation of eligibilities would remain
within the Board’s jurisdiction under the “unified penalty” principle, but only under 5 U.S.C.
Chapter 75 and not under 5 C.F.R. § 731.501. Thus, all three of the penalties in the instant case

fall within the jurisdiction of the Board. Each of these arguments will be discussed in turn.

Pleading Number QIAN Submission date: 2010-08-31 20:15:34 Confirmation Numb QE page 6 of 20


Certificate Of Service

e-Appeal has handled service of the assembled pleading to MSPB and the following

Parties.

Name & Address

Documents

Method of Service

MSPB: Office of the Clerk of the
Board

Appellant's Brief in
Support of Petition for
Review on Remand

e-Appeal / e-Mail

Holley C. Barnes
Appellant

Appellant's Brief in
Support of Petition for
Review on Remand

e-Appeal / e-Mail

L agree to send a printed copy of the electronic pleading with attachments to non-efilers
by the end of next business day, as follows:

Name & Address Documents Method of Service
Steven E. Abow, Esq. Appellant's Brief in US Postal Mail
[Agency Representative Support of Petition for
Office of Personnel Management {Review on Remand
Office Of General Counsel 1900 E
St. N.W., Rm 7F10
Washington, DC 20415
Robert J. Girouard, Esq. Appellant's Brief in US Postal Mail
Agency Representative Support of Petition for
Office of Personnel Management {Review on Remand
Office of the General Counsel
1900 E Street, N.W. Room 7353
Washington, DC 20415-1300
Darlene M. Carr, Esq. Appellant's Brief in US Postal Mail
Agency Representative Support of Petition for
Confirmation Number QED = page 19 of 20

Pleading Number QED = Submission date : 2010-08-31 20:15:34


fact, the Board has made a specific finding that the Appellant satisfies the definition of

employee. See Opinion and Order, dated September 3, 2009, at 3.

It is worth noting that the Federal Circuit previously adjudicated a similar matter, involving the
definition of “employee” and, in so doing, reaffirmed the primacy of the “plain and
unambiguous” doctrine in statutory construction. In Van Wersch v. Dept. of Health and Human
Services, 197 F.3d 1144, 1148 (Fed. Cir. 1999), the Court found itself facing express statutory
language concerning the definition of employee with possibly conflicting legislative history.
The Board had held that Van Wersch did not meet the definition of employee because she did
not meet the requirements of § 7511(a)(1)(C)(i) and (ii). Van Wersch argued that under the
express terms of the statute, she satisfied the definition of employee if she satisfied the
requirements of § 7511(a)(1)(C)(i) or (ii). The Court agreed with Van Wersch while noting the
government’s argument that the legislative history of Chapter 75 indicated that Congress did not
want to extend appeal rights to nonpreference eligibles, such as Ms. Van Wersch. Jd. at 1151. In
ultimately deciding that Ms. Van Wersch was an employee entitled to appeal rights at the Board,
the Court declared that “the language of § 7511(a)(1)(C) ... is crystal clear.” Jd. at 1152. Noting
that the plain meaning of the word “or” signifies alternatives, the Court stated that per the statute,
Ms. Van Wersch needed only to qualify under (i) or (ii) to be considered an employee. Id. The
Court added that had the statute been ambiguous, then and only then, the government’s
legislative intent argument would have come into play. Id. (Emphasis added). In the instant
case, there is no ambiguity about the definition of employee, and Appellant Barnes meets that

definition. The lesson of Van Wersch applies to the instant case.

Pleading Number : MMMM Submission date : 2010-08-31 20:15:34 Confirmation Number QD = page 9 of 20


Case Title : HOLLEY C. BARNES v. OFFICE OF PERSONNEL MANAGEMENT
Docket Number : DC-0731-09-0260-R-1

Pleading Title : Appellant's Brief in Support of Petition for Review on Remand
Filer's Name : Joseph V. Kaplan, Esq.

Filer's Pleading Role : Private Attorney

i the supporting doc

N/A

Pleading Number QED = Submission date : 2010-08-31 20:15:34 Confirmation Number qa — page 1 of 20


appeal rights. By attempting to deny Appellant these rights, OPM is clearly trying to employ an

implicit, unauthorized exception to Chapter 75.

For the reasons stated above, the plain and ambiguous language of 5 U.S.C. Chapter 75 provides
that the Appellant’s removal must be processed according to, and adjudicated in accordance
with, the substantive and procedural safeguards of that Chapter, and with OPM’s Regulations
under 5 C.F.R. Part 752, to the extent those regulations are in accord with 5 U.S.C. Chapter 75.
OPM’s limited appeal rights, and limits on the Board’s authority under 5 C.F.R. § 731, should be
declared invalid or otherwise inoperative to the extent they apply to federal employees, such as
the Appellant, who have passed their probationary periods.
B.
OPM’s Regulations Are in Conflict With, and Exceed, its Statutory Authority
With Respect to Making Suitability Determinations

OPM declares that the purpose of 5 C.F.R. Part 731 is “to establish criteria and procedures for
making determinations of suitability and for taking suitability actions regarding employment in
covered positions pursuant to 5 U.S.C. §3301 and E.O. 10577.” See 5 C.F.R. § 731.101 (a),
(emphasis added). Yet, OPM’s regulations, and its dictates to federal agencies that they remove
non-probationary federal employees for nonsuitability, as in the instant case, exceed the scope of

OPM?’s statutory authority under 5 U.S.C. § 3301. Consequently, the Board should hold OPM’s

regulations to be invalid.

The inquiry starts, as it must, with the express language of 5 U.S.C. § 3301 -- which statute

OPM claims is the source of its authority to promulgate the regulations used in this case to

remove Appellant Barnes. Specifically, 5 U.S.C. § 3301 provides:

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under this section is entitled to appeal to the Merit Systems Protection Board under section 7701
of this title.” See 5 U.S.C. §7513(d). As with the earlier provisions, a plain reading of this

provision is sufficient to ascertain its meaning.

2.
Congress has demonstrated its ability to explicitly exempt certain employees
from appeal rights under Chapter 75 and did not exempt employees removed on
nonsuitability grounds. Any attempt to imply such exemption into Chapter 75
is contrary to established case law.

OPM’s attempt to deprive Appellant of her statutory rights by implication is a violation of
statutory construction and rules of preemption, and therefore fails. As mentioned above, in
drafting Chapter 75, Congress specifically enumerated exceptions to the general ability of
employees to appeal their removals under the provisions of 5 U.S.C. § 7513(d). Section 7511(b)
contains an extensive list of individuals exempted from the section. See 5 U.S.C. §7511(b).
Moreover, § 7512 provides an explicit list of adverse actions to which the appeal rights of
Chapter 75 do not apply. See 5 U.S.C. §7512. Nowhere does the statute provide an exemption

from Chapter 75’s adverse actions rights and procedures for non-probationary individuals who

are removed for nonsuitability, such as Appellant.

It is an axiom of statutory construction that “the expression of ...exception[s] indicates that no
other exceptions apply.” Horner v. Andrzjewski, 811 F.2d 571, 575 (Fed. Cir. 1987). Put
another way, “[w]here Congress explicitly enumerates certain exceptions. ..additional exceptions
are not to be implied, in the absence of evidence or a contrary legislative intent.” Andrus v.
Glover Construction Company, 446 U.S. 608, 617 (1980). Because removal actions based on

suitability are not included among the exemptions, Appellant is not divested from Chapter 75

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(d) An employee against whom an action is taken under this section is entitled to
appeal to the Merit Systems Protection Board under section 7701 of this title.

(Emphasis added).

To determine if Appellant falls within this statutory right of appeal, she must be an “employee”
within § 7513(a), and the personnel action on appeal must be an “action” as contemplated by §
7513(b). That Appellant Barnes is an employee with an appealable action is clear from the plain

reading of the statute.

The definition of “employee” is contained in Section 7511 of Chapter 75. This definition
provides for three classifications of employees: 1) employees in the competitive service; 2)
employees who are preference eligible and in the excepted service; and 3) employees who are
not preference eligible but are in the excepted service. See 5 U.S.C. §7511. Appellant was an
employee in the competitive service, and a reading of the definition of this category of employee
leaves no room for equivocation as it asserts that:
(1) “employee” means — (A) an individual in the competitive service — (i) who is

not serving a probationary or trial period under an initial appointment; or (ii)

who has completed | year of current continuous service under other than a

temporary appointment limited to 1 year or less. See 5 USC. §

7511 (a)(1)(A).
From a reading of the statutory provision, it is clear that an individual who is not serving a
probationary or trial period under an initial appointment constitutes an “employee” for the

purposes of the statute. Thus, Appellant would classify as an employee as she was in the

competitive service, and it is uncontested that she had completed her probationary period. In

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U.S. MERIT SYSTEMS PROTECTION BOARD

HOLLEY C. BARNES,
Appellant, MSPB Docket Number
DC-0731-09-0260-R-1
Vv.

OFFICE OF PERSONNEL MGMT,
Agency.

DATE: August 31, 2010

LSS SS LS

APPELLANT’S BRIEF IN SUPPORT OF
HER PETITION FOR REVIEW ON REMAND

L
INTRODUCTION

The Appellant, Holley Barnes, by and through undersigned counsel, hereby submits this brief in
support of her Petition for Review to address the questions posited by the Board in its September
3, 2009, Opinion and Order, to-wit: 1) Whether the Appellant is entitled to appeal her removal
to the Board as an adverse action under 5 U.S.C. chapter 75, subchapter II; and 2) if the Board’s
adverse-action jurisdiction attaches, whether 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.

For the reasons set forth below, the Board should hold that OPM’s regulations at 5 C.F.R.
Subpart 731, as applied to non-probationary employees, are invalid and that the Appellant is
entitled to the substantive and procedural adverse action protections of 5 U.S.C. Chapter 75.

Il.
BACKGROUND

The essential facts are undisputed. Appellant Barnes was hired by the Department of Homeland
Security, Citizenship and Immigration Services (CIS) effective November 12, 2006. By letter

dated December 1, 2008 -- more than two years after the Appellant commenced employment --

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Interestingly, in implementing its regulations at 5 C.F.R. Subpart 731 purportedly in fulfillment
of this statutory right, OPM has listed the “definitions” it itself uses. OPM defines an
“applicant” as “a person who is being considered or has been considered for employment.” 5
C.F.R. § 731.101(b). Additionally, an “appointee” is defined as a person who has entered on
duty and is in the first year of a subject-to-investigation appointment. Jd. Moreover, Part 731
also clearly contrasts employees from applicants and appointees, stating that an employee is “a
person who has completed the first year of a subject-to-investigation appointment.” Id. Even
using OPM’s own definitions it is clear that Subpart 731 is inapplicable to a removal of a non-

probationary employee at OPM’s direction for unsuitability.

As the plain and unambiguous reading of 5 U.S.C. § 3301 indicates, OPM has the power to
regulate admission to the civil service or to examine the suitability of applicants, but no clear
reading of the statute could be said to grant OPM the power to subject permanent federal
employees—who are not applicants, and who certainly are not seeking admission to the civil
service—to suitability actions. Jd. (Emphasis added). Such an ability by OPM is self-granted,
and contrary to its statutory grant of authority. The Appellant, neither seeking “admission” into
the civil service, nor being an “applicant” for federal civil service, is beyond the reach of OPM’s
OPM?’s regulations at 5 C.F.R. Subpart 731, permitting it to dictate to federal agencies that they
remove non-probationary employees for unsuitability exceed OPM?’s statutory rights and are
invalid.
1.

OPM cannot rely on executive orders to circumvent
clear statutory limits on its rule-making

12

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B.
The Board Has Jurisdiction Over the Debarment and Cancelation Penalties

If the Board finds that the Appellant is entitled to appeal her removal under Chapter 75, the
Board should also retain jurisdiction over her debarment and cancellation of eligibilities issues.
The “unified penalty” principle dictates that when two penalties are part of a unified penalty,
arising from the same set of factual circumstances, the Board’s jurisdiction extends to both
actions. Campbell v. Dept. of Veterans Affairs, 93 MS.P.R. 70, 72 (2002). However, this

jurisdiction would be pursuant to 5 U.S.C. Chapter 75, not 5 CFR. § 731.501. 4

This jurisdictional principle regarding multiple components of a penalty has been firmly
established by Federal Circuit. In Brewer v. American Battle Monuments Commission, 779 F.3d
663, 664 (Fed. Cir. 1985), the agency proposed to demote the employee a grade and reassign him
based upon the same charged misconduct. The employee had been charged with the loss of
government property and violation of two agency regulations. Jd. The agency attempted to
argue that the Board did not have jurisdiction to review the reassignment that accompanied the
reduction in grade. Id. at 665. However, the Federal Circuit disagreed, asserting that:

The board has jurisdiction to review what is ... a unitary penalty. To hold

otherwise would insulate from review a penalty that may clearly be excessive or

unreasonable in view of Douglas, by merely reversing the order of reduction in

grade and reassignment.

Id.

length above, and agencies are precluded by force of OPM’s regulation from taking such action,
Appellant must be reinstated as her removal was substantively and procedurally defective. If the
CIS attempts to remove Appellant subsequently, if cannot rely on “unsuitability” but must give
Appellant notice of reasons as to why her removal would promote the efficiency of the service.

41£5 C.F.R. Subpart 731 is invalid as it applies to non-probationary employees, then so too are
its debarment and other penalty provisions invalid with respect to those employees.

14

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1, Would you like to enter the text online or upload a file containing the pleading?

See attached pleading text document

2. Does your pleading assert facts that you know from your personal knowledge?

No

Pleading Number QM Submission date : 2010-08-31 20:16:34 Confirmation Number: QD = page 3 of 20


Table of Contents

Pleading Interview 3
Uploaded Pleading Text Document 4
Certificate of Service 19

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The President may:

(1) prescribe such regulations for the admission of individuals into the civil
service in the executive branch as will best promote the efficiency of that
service;

(2) ascertain the fitness of applicants as to age, health, character, knowledge, and
ability for the employment sought; and

(3) appoint and prescribe the duties of individuals to make inquiries for the
purpose of this section.

(Emphasis added).
Therefore, any statutory authority that OPM claims emanates from 5 U.S.C. § 3301 must be be
limited to those individuals who are seeking admission into the civil service under § 3301(1) or

for ascertaining the fitness of applicants to federal civil service. The Appellant fits under neither

of these statutory grants to OPM.

Oxford dictionary on-line defines “admission” as follows: “the process or fact of entering or
being allowed to enter a place, organization, or institution.” (http:/oxforddictionaries.com/

view/entrv/m_en_us1220008im_en_us1220008). Merriam-Webster on-line dictionary defines

“admission” as follows: “the state or privilege of being admitted.” (http://www.merriam-

webster.com/dictionary/admission?show=0&t=1283287502).

Neither the Appellant, nor any non-probationary employee, is seeking admission into the civil
service. To the contrary, non-probationary employees such as the Appellant are perforce the
antithesis of individuals seeking “admission” into federal civil service because they have already
been employed and have passed the probationary period, which period is considered to be a
continuation of the examination process. See Brandt v. Dept. of the Air Force, 103 M.S.P.R.

671, 681 n. 7 (2006). Because OPM claims that its right to promulgate 5 C.F.R. Subpart 731

10

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In addition to citing to 5 U.S.C. § 3301 as its authority, also cites to E.O. 10577 as its authority
for its suitability regulations at 5 C.F.R. Subpart 731. OPM’s regulations are subservient to the
statutory authority in Chapters 33 and 75 of Title 5 the U.S. Code, regardless of any executive

order.

OPM, like all federal agencies, is a “creature of statute,” ... “having no constitutional or
common law existence or authority, but only those authorities conferred upon it by Congress.”
See Atlantic City Electric Company, 295 F.3d at 8. Moreover, an agency is not permitted to
“rely on one of its own regulations to trump the plain meaning of a statute.” Id. at 11. OPM’s
rule-making authority must defer to the explicit terms of a federal statute. Likewise, OPM’s
stated reliance on E.O. 10577, to support the validity of 5 C.F.R. Subpart 731, fails as the
provisions of Chapter 75 supersede any grant of authority in an executive order. As federal case
law has made manifestly clear, “an executive order cannot supersede a statute.” Marks v. CIA,
590 F.2d 997, 1003 (D.C. Cir. 1978). Notable about E.O. 10577 is the fact that it predates
Chapter 75 by over 20 years, having been signed into law by President Eisenhower in 1954. As
the order states explicitly that it applies to all positions in the competitive service, the rules of
statutory construction dictate that any provision contrary to a provision in Chapter 75—which
controls on issues relating to the competitive service—or any other statute, is superseded by the

statutory authority. Id? Moreover, Chapter 75 post-dates the Executive Order and would

supersede any conflicting provision in the Order.

3 In its Opinion and Order, the Board asked the parties to address how and whether OPM’s June
16, 2008 revision of it suitability regulations affect the scope of the Board’s review of those
actions. Because OPM now specifically precludes agencies from taking an action against an
“employee,” i.e. a non-probationer, on suitability grounds, (see 5 C.F.R. § 105(e)), inasmuch as
OPM is without statutory authority to remove a non-probationer for unsuitability as discussed at

13

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