UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HYGINUS U. AGUZIE, )

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S ",J O v. ) No. DC-0731-09-0261-R-V* •-— «• '__ . f~-p

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BRIEF OF THE NATIONAL TREASURY EMPLOYEES UNION <=? '

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Pursuant to Federal Register Notices published at 75 Fed.

Reg. 20007 and 75 Fed. Reg. 29366, the Board has requested

interested parties to submit amicus briefs on an important issue

presented in the above-captioned case and other cases pending

before the Board. Specifically, the Board asks: when 0PM

"directs an agency to separate a tenured employee for

suitability reasons, must the Board consider a subsequent appeal

under 5 CFR part 731 as contemplated therein, or should the

Board instead consider the appeal under 5 U.S.C. Chapter 75,

given that the scope of a Chapter 75 appeal is broader than a

part 731 appeal and that OPM generally lacks authority to issue

regulations limiting statutory rights?"
As the Board recognized in its Aguzie decision, the issue

raised is not "academic." Aguzie v. Office of Pers. Mgmt., 112

M.S.P.R. 276, 278 (2009) . In contrast to its authority

regarding part 731 appeals, the Board's jurisdiction under

Chapter 75 has long been recognized to include the power to

mitigate penalties assessed against employees.

In the pending cases presenting this issue, 0PM maintains

that its regulations handcuff the Board and "dictate" that "0PMdirected" suitability removals may not be adjudicated by the

Board under the adverse action procedures of Chapter 75. OPM

Brief at 7. In advancing this position, OPM's view collides

with the plain language of the relevant provisions of the Civil

Service Reform Act (CSRA or the Act), Pub. L. No. 95-454, 92

Stat. 1111 (1978).

ARGUMENT

Prior to 1978, federal employment was governed by an

"outdated patchwork of statutes and rules built up over almost a

century." United States v. Fausto, 484 U.S. 439, 444 (1988).

No systematic scheme for reviewing personnel actions existed.

Congress reacted to this state of disarray by enacting the CSRA,

which "comprehensively overhauled the civil service system"

(Lindahl v. OPM, 470 U.S. 768, 773 (1985)). The Act "prescribes

in great detail the protections and remedies applicable ... "

to pertinent employees. Fausto, 484 U.S. at 443. It is against
this backdrop that the question posed by the Board must be

assessed.

1. The interpretation of a statute begins, of course, with

its language. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

438 (1999). Section 7513(d) of Title V plainly stipulates that

a tenured employee "against whom an action is taken under this

section is entitled to appeal to" the Board. As part of its

consideration, "in great detail/" of the protections employees

should have under the Act, Congress prescribed, with

specificity/ what "actions" could be contested and appealed to

the Board under chapter 75. Congress took pains to list those

actions—and included a "removal" on its list. 5 U.S.C. § 7512.

Congress further took the trouble to expressly exclude

certain matters from its list of actions subject to challenge

and appeal under Chapter 75. 5 U.S.C. § 7512. Tellingly,

Congress chose, in crafting its "elaborate" and "comprehensive"

(Lindahl, 470 U.S. at 773-774) CSRA scheme, not to except

suitability removals initiated by OPM and effectuated by the

employing agency from its list of covered actions. Where

Congress carefully specified which matters it wished to except

from the scope of actions appealable under Chapter 75, no

"additional exception . . . should be implied." Carter v.

Gibbs, 909 F.2d 1452, 1455 (Fed. Cir.) (en bane), cert, denied.
498 U.S. 811 (1990). This includes an exception for suitability

removals.

Hence, on the face of the statute, there is no provision

that would preclude a removal action, such as Aguzie's, from

being appealed via Chapter 75. On the contrary, there is

express statutory authorization for such an appeal. As the

Federal Circuit has instructed, where the language of the CSRA

is plain, it must be construed to "mean what it says." Mudge v.

United States, 308 F.3d 1220, 1228 {Fed. Cir. 2002).

2. Faced with the plain language of the Act authorizing

Aguzie to pursue his appeal to the Board under Chapter 75, 0PM

bears the heavy burden of establishing that Congress did not

mean what the Act says. Garcia v. United States, 469 U.S. 70,

75 (1984) (underscoring that "only the most extraordinary

showing of contrary intentions from [the legislative history]

would justify a limitation on the *plain meaning' of the

statutory language"). OPM fails to show that the plain language

at issue here should not be adhered to.

OPM acknowledges, as it must/ that Congress chose, in

section 7512, not to include removals for suitability reasons on

its list of actions that may not be appealed under chapter 75.

Notwithstanding that Congress clearly gave careful consideration

to the matter of what to exclude from actions appealable under

Chapter 75, OPM maintains that the list should not be viewed as
"exhaustive" (OPM reply at 10). Instead, 0PM would have the

Board infer that Congress would want it to re-write the Act and

to add suitability removals to the list of those matters not

appealable under Chapter 75. Such an argument is untenable. As

shown, where Congress has carefully chosen the types of actions

to exclude from those "actions covered" by Chapter 75, the Board

must decline OPM's invitation to add to Congress' list a

provision that Congress determined not to include.

3. OPM maintains that Congress "ratified" its view, as

codified in part 731, that an individual is not entitled to

invoke the adverse action procedures of Chapter 75 when he is

removed for suitability reasons by OPM and the employing agency.

In its Aguzie reply brief (though, interestingly, not in

its principal brief), OPM appears to argue that section 902(a)

of the CSRA, entitled "Savings Provisions," constituted such a

ratification. OPM asserts that section 902(a) "had the effect"

of "reserving" the then-existing suitability program until such

time as the President or OPM chose to amend it. OPM reply at 5.

The actual language of section 902(a) is more revealing than

OPM's paraphrasing of it and completely undermines OPM's

position.

Section 902(a) states that "except as otherwise provided in

this Act, all executive orders, rules and regulations affecting

the Federal service shall continue in effect . . . until
modified, . . . superseded, or repealed" by the President, 0PM,

the MSPB, the Equal Employment Opportunity Commission, or the

Federal Labor Relations Authority "with respect to matters

within their respective jurisdictions." Id. (Emphasis added.)

Curiously, 0PM's discussion of this provision fails to mention

its "except as otherwise provided in this Act" language.

Properly read, what 902(a) demonstrates is that, while certain

rules may well have been "reserved," no rules that conflicted

with the CSRA could be deemed to survive under the Act. 0PM's

suitability action appeal rules, to the extent they were

embodied in the pre-Act regulatory scheme, were plainly not

intended by Congress to be "reserved" by section 902(a). As

shown, those rules contravene the Board's explicitly prescribed

Chapter 75 jurisdiction over appeals concerning removals of

tenured employees.

0PM further purports to see congressional ratification of

its position in 5 U.S.C. § 1103. That provision describes the

functions of the OPM director and states that the director is,

among other things, to enforce the civil service rules. See OPM

brief at 18. Such a generic, non-specific provision hardly

amounts to a "ratification" of OPM's assertion that the express

appeal rights concerning removals conferred by 5 U.S.C. §§ 7512-

7513 should give way to OPM's declaration that a suitability
appeal right is only a matter of OPM largesse and is conferred

solely by part 731 of its regulations.

4. Unable to explain away the relevant statutory language,

OPM advances various arguments to support its view that an 0PMdirected suitability removal may not be adjudicated under the

adverse action provisions of Chapter 75. Those arguments are

unavailing.

a. OPM spends much time describing the "long history" of

its authority to initiate suitability removal actions. Thus,

OPM points to general statutory provisions authorizing it, among

other things, to prescribe regulations for the admission of

applicants into the civil service. See OPM brief at 9, 11,

citing 5 U.S.C. §§ 3302, 1302 and 1103. Further, it notes that

the pre-Act "Rule V" of Executive Order 10577 provided that the

Civil Service Commission could, upon investigation, determine

that an individual is "disqualified" for federal employment and

thereby direct the individual be removed by his employing

agency. OPM states that the "import" of this pre-Act Order was

retained in Executive Order 12107, issued in December 1978. OPM

brief at 10. The 1978 amended order similarly provides that OPM

is to enforce the civil service laws and may, where warranted,

instruct an employing agency to remove an employee if OPM

determines the individual is disqualified from federal

employment.
This history indeed exists. All it shows, however, is that

OPM may retain some authority, consistent with law and under

proper circumstances, to initiate suitability actions regarding

individuals. What these provisions, including Rule V, do not

reach is the critical question presented here--namely, whether

the 1978 enactment of Chapter 75 bestowed upon tenured employees

the right to appeal removals, including suitability removals

initiated by OPM.

b. In resisting the notion that a tenured employee facing

a suitability removal is entitled to appeal that action under

Chapter 75, OPM attempts to rely on its own regulations for

support. Those regulations, by their terms, explicitly

recognize that a suitability action includes a w[r]emoval." 5

C.F.R. 731.101(b), 731.203(a)(2). Nonetheless, OPM's Part 731

regulations purport to distinguish between OPM-initiated

suitability removals and those taken by employing agencies under

Chapter 75. Thus, the regulations pronounce, among other

things, that Chapter 75 adverse action procedures do not apply

to OPM-initiated suitability actions under 731. They flatly

declare that a suitability removal may not be regarded as an

action taken under chapter 75. 5 CFR 731,203 (f) .

OPM asserts that its suitability regulations, and their

characterization of suitability appeals as not implicating

Chapter 75, should receive deference and govern the question

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presented by the Board. No such deference is owed, however,

where the regulations in question conflict with statutory

language, as is the case here. As the Board has suggested in

Aguzie, this effort to "carve out an exception" (112 M.S.P.R. at

4) to the Board's jurisdiction cannot be squared with the CSRA.

The Act, as shown above, expressly provides that a removal of a

tenured employee is, in fact, statutorily defined as an action

taken under Chapter 75. Moreover, Congress chose not to include

an OPM-initiated suitability removal on its list of exceptions

to such actions.

c. Seeking to avoid the statutory appeal rights conferred

by 5 U.S.C. §§ 7512-7513, OPM insists that an OPM-directed

suitability removal of a tenured employee is not an adverse

action because it is usually not initiated by the employing

agency. This argument, too, is unavailing. Section 7513

authorizes an "agency" to take an appropriate action against an

employee only "for such cause as will promote the efficiency of

the service." OPM readily acknowledges that it does not carry

out a suitability removal of an employee on its own. Though it

minimizes the role of the employing agency as "ministerial" (OPM

brief at 23}, the fact is that OPM regards the agency as the

actual removing entity—thus, further demonstrating that a

suitability removal is, in reality, an adverse action. In any

event, there is nothing that empowers OPM, by regulation or
otherwise, to override a tenured employee's statutory appeal

rights regarding a removal, even where that removal is pursued

for suitability reasons.

d. OPM relies on a number of Federal Circuit decisions,

none of which is dispositive here. For example, OPM notes that

the court in Folio v. Dep't of Homeland See., 402 F.3d 1350

(Fed. Cir. 2005), observed that part 731 concerns appeals of

suitability determinations to the Board and describes the

Board's jurisdiction under part 731. The court, however, had no

occasion to address the question now presented by the Board:

whether a removed tenured employee is entitled to invoke Chapter

75 of Title V notwithstanding that his removal was initiated

under part 731.

In addition, OPM relies on Lackhouse v. Merit Sys. Prot.

Bd., 773 F.2d 313 (Fed. Cir. 1985), for the unremarkable

proposition that civil service rules that do not "facially

conflict" (id. at 316) have an "independent vitality." OPM

brief at 17. That principle is rendered beside the point here

where, as we have shown, OPM's rules are at odds with the plain

language of the Act.

Finally, and contrary to OPM's assertions, the court's

decision in Lovshin v. Dep't of the Navy, 767 F.2d 826 (Fed.

Cir. 1985), provides no support for OPM's position in the

instant case. Seeking to apply Lovshin "[b]y analogy," OPM

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asserts that if Congress had meant to disturb 0PM's part 731

suitability regulatory scheme, Congress would have stated that

"suitability actions could no longer be used for removal

actions." 0PM brief at 19. It is not our view, however, that

suitability actions can no longer be used to remove employees.

They can. Our objection is to 0PM's limitations on the Board's

jurisdiction to consider, as an adverse action, an employee

removal that is initiated by 0PM on suitability grounds. As to

this matter, we believe that Congress has clearly spoken. It

did so when it granted tenured employees the right, in Chapter

75, to appeal removals to the Board without exception for those

removals prompted by suitability reasons.

CONCLUSION

As demonstrated, the plain language of the relevant

statutory provisions of the CSRA establishes that a tenured

federal employee is entitled to appeal a suitability removal

under Chapter 75. Insofar as they conflict with this

conclusion, OPM's regulations require revision so that they are

in accord with the commands of the Act.

Respectfully submitted,

xN.»

)UDEN

General Counsel

D.C. Bar No. 254862

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BARBARA A. ATKIN

Deputy General Counsel

D.C. Bar No. 225797

Deputiy ^General Counsel

D.C. Bar No. 425653

NATIONAL TREASURY EMPLOYEES UNION

1750 H Street, NW

Washington, DC 20006

(202) 572-5500

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