THE UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2011 MSPB 10 

 Docket Nos. DC-0731-09-0261-R-1 

 DC-0731-09-0260-R-1 

Hyginus U. Aguzie, 

Holley C. Barnes, 

Appellants, 

v. 

Office of Personnel Management, 

Agency. 

January 26, 2011 

John E. Carpenter, Esquire, Washington, D.C., for appellant Aguzie. 

Joseph V. Kaplan, Esquire, Washington, D.C., for appellant Barnes. 

Elaine Kaplan, Esquire, Robert J. Girouard, Esquire, Darlene M. Carr, and 

Joyce B. Harris-Tounkara, Esquire, Washington, D.C., for the agency. 

Andres M. Grajales, Esquire, Washington, D.C., for amicus curiae, 

American Federation of Government Employees. 

Gregory O’Duden, Esquire, and Larry J. Adkins, Esquire, Washington, 

D.C., for amicus curiae, National Treasury Employees Union. 

Mark Guberman, Esquire, Rockville, Maryland, amicus curiae in his 

individual capacity. 

Gregg Avitabile, Esquire, and William Way, Esquire, Washington, D.C., 

for amicus curiae, Department of the Treasury. 

Will A. Gunn, Esquire, Washington, D.C., for amicus curiae, Department 

of Veterans Affairs. 
2

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

¶1 These appeals present the question of whether, when the Office of 

Personnel Management (OPM) directs an agency to remove a tenured employee 1

pursuant to its authority under 5 C.F.R. part 731, the removal action is subject to 

the requirements of 5 U.S.C. chapter 75 subchapter II, including the Board appeal 

rights guaranteed under 5 U.S.C. § 7513(d). For the reasons set forth below, we 

answer in the affirmative. 

BACKGROUND

¶2 The Board first addressed the question at hand in the case of Aguzie v. 

Office of Personnel Management, 112 M.S.P.R. 276 (2009). Mr. Aguzie was 

employed in the competitive service as a Budget Analyst with the U.S. 

Commission on Civil Rights (USCCR). More than 2 years after his appointment, 

OPM informed Mr. Aguzie that it had found him unsuitable for any covered 

position 2 in the federal service on the grounds that he had made material, 

intentional false statements on several forms submitted in connection with his 

application and appointment. OPM further informed Mr. Aguzie that it had taken 

 

1

 For purposes of this decision, we will use the term “tenured employee” to refer to an 

individual who satisfies the definition of “employee” at 5 U.S.C. § 7511(a)(1). 

2

 Title 5 C.F.R. § 731.101 defines a “covered position” as “a position in the competitive 

service, a position in the excepted service where the incumbent can be noncompetitively 

converted to the competitive service, and a career appointment to a position in the 

Senior Executive Service.” 
3

the following actions: (1) directed USCCR to remove him from the rolls within 

5 days of receipt of its decision, pursuant to 5 C.F.R. § 731.304; (2) cancelled 

any reinstatement eligibility obtained from his appointment or any other 

eligibilities he may have had for covered positions; and (3) debarred him from 

competition for, or appointment to, any covered position for a period of 3 years. 

¶3 Mr. Aguzie appealed the suitability actions to the Board pursuant to 

5 C.F.R. § 731.501. Following a hearing, the administrative judge issued an 

initial decision finding that OPM’s suitability determination was supported by a 

preponderance of the evidence. The administrative judge did not review the 

suitability actions themselves, citing Folio v. Department of Homeland Security, 

402 F.3d 1350, 1353-55 (Fed Cir. 2005), for the proposition that the Board’s 

review of a suitability determination includes an evaluation of the criteria set 

forth in 5 C.F.R. § 731.202, but does not extend to the ultimate action taken by 

OPM.3

 The administrative judge further found that Mr. Aguzie failed to prove 

his affirmative defenses of harmful error and discrimination based on race and 

national origin. 

¶4 The Board denied Mr. Aguzie’s petition for review but reopened the case 

on its own motion to address the question, not previously raised by the parties, of 

whether Mr. Aguzie was entitled to appeal his removal as an adverse action under 

5 U.S.C. chapter 75 subchapter II. The Board noted that at the time of his 

removal Mr. Aguzie was an “employee” under 5 U.S.C. § 7511(a)(1)(A) and that 

 

3

 OPM’s suitability regulations, as revised effective June 15, 2008, now state that it is 

the “suitability action” which may be appealed to the Board. 5 C.F.R. § 731.501(a). 

In our original decisions in these appeals, we raised the question of whether that 

revision altered the scope of the Board’s regulatory jurisdiction, thereby superseding 

Folio. See Aguzie, 112 M.S.P.R. 276, ¶¶ 1 n.1, 7; Barnes v. Department of Homeland 

Security, 112 M.S.P.R. 273, ¶ 6 (2009). On reconsideration, OPM states that the 

revision was not intended to expand the Board’s review authority beyond the merits of 

the underlying suitability determination. See OPM Brief at 13, n.5. Because we find 

that the appellants’ removals are reviewable under 5 U.S.C. § 7513(d), we do not decide 

at present whether this is a permissible construction of 5 C.F.R. § 731.501. 
4

removal actions generally fall within the scope of 5 U.S.C. § 7512. Thus, the 

Board reasoned, it appeared Mr. Aguzie might have a statutory right to appeal his 

removal under 5 U.S.C. § 7513(d), in which case the Board would have the 

authority to review and potentially mitigate the removal action. The Board 

remanded the appeal to provide the parties an opportunity to brief the question of 

whether Mr. Aguzie is entitled to appeal his removal under 5 U.S.C. § 7513(d) 

and, if so, whether the other actions on appeal remain within the Board’s 

jurisdiction under 5 C.F.R. § 731.501. Aguzie, 112 M.S.P.R. 276, ¶ 7. 

¶5 That same day, the Board issued a companion decision in Barnes v. Office 

of Personnel Management, 112 M.S.P.R. 273 (2009), remanding that appeal for 

consideration of the same issues. Ms. Barnes, a competitive service employee of 

the Department of Homeland Security, Citizenship and Immigration Services 

(CIS), had completed her probationary period when OPM found her unsuitable for 

her position based on a charge of material, intentional false statement or 

deception or fraud in examination or appointment. Pursuant to that 

determination, OPM took the following actions: (1) directed CIS to remove her 

from the rolls within 5 work days of its receipt of the decision; (2) cancelled any 

reinstatement eligibility obtained from her appointment or any other eligibilities 

she may have had on existing competitive registers; and (3) debarred her from 

competition for, or appointment to, any position in the competitive service for a 

period of 3 years. Id., ¶ 2. As in Aguzie, the administrative judge sustained the 

suitability determination without reviewing the propriety of the suitability 

actions. Id., ¶ 4. 

¶6 OPM subsequently filed a request to reopen Aguzie and Barnes for 

adjudication by the full Board. The Board granted OPM’s request and 

consolidated the appeals pursuant to 5 U.S.C. § 7701(f)(1). The Board later 

added two additional cases, Scott v. Office of Personnel Management, MSPB 

Docket No. CH-0731-09-0578-I-1, and Hunt-O’Neal v. Office of Personnel 
5

Management, MSPB Docket No. AT-0731-09-0240-I-1, to the consolidated 

appeal, over the objections of Mr. Scott and OPM, respectively. 

¶7 The Board identified the question raised in Aguzie and Barnes for oral 

argument and issued a Federal Register notice soliciting amicus briefs. 75 Fed. 

Reg. 20,007 (April 16, 2010); see also 75 Fed. Reg. 29,366 (May 25, 2010) 

(extending the filing deadline). After receiving briefs from the parties and amici, 

the Board held oral argument on October 18, 2010.4

 Having decided the question 

identified for oral argument, we now sever Scott and Hunt-O’Neal from the 

consolidation. We will issue separate decisions addressing the issues unique to 

those appeals. 

ANALYSIS

¶8 It is axiomatic that the interpretation of a statute begins with the language 

of the statute itself. Van Wersch v. Department of Health & Human Services, 

197 F.3d 1144, 1148 (Fed. Cir. 1999). Where the language provides a clear 

answer, the inquiry ends, and the plain meaning of the statute will be regarded as 

conclusive. Id. 

¶9 Turning to the language of the statute, 5 U.S.C. § 7513(a) provides that, 

“[u]nder regulations prescribed by [OPM], 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.” Title 5 U.S.C. § 7513(d) in turn provides that “[a]n 

employee against whom an action is taken under this section is entitled to appeal 

to the Merit Systems Protection Board under section 7701.” Section 7513 does 

not authorize or refer to any action that is not subject to the efficiency of the 

service standard of 5 U.S.C. § 7513(a). Consequently, the right of appeal under 

5 U.S.C. § 7513(d) applies where an action falls under 5 U.S.C. § 7513(a), i.e., 

 

4

 We give special thanks to Joseph Kaplan, Esq., and Kristin Alden, Esq., for providing 

pro bono representation for Ms. Barnes and Ms. Hunt-O’Neal. 
6

where the action is: (1) taken by an “agency”; (2) covered by 5 U.S.C. chapter 75 

subchapter II; and (3) taken against an “employee” as defined for purposes of 

5 U.S.C. chapter 75 subchapter II. We address these requirements in turn. 

The OPM-directed removal of an employee pursuant to 5 C.F.R. § 731 is an 

action taken by an “agency.”

¶10 We first find that an OPM-directed removal for suitability reasons is an 

action taken by an “agency.” OPM has disputed this point, arguing that the term 

“agency,” as used in chapter 75 subchapter II, refers exclusively to an employing 

agency, and therefore does not refer to OPM outside its capacity as an employer. 

We need not decide the merits of that argument, for it is clear from the language 

of OPM’s suitability regulations, as well as their underlying authority at Civil 

Service Rule V, that when OPM directs the removal of an employee for 

suitability reasons, it is the employing agency that ultimately takes the action. 

See Civil Service Rule V, § 5.3(1), codified at 5 C.F.R. § 5.3(1) (authorizing the 

Director of OPM to instruct an agency to “separate or take other action” against 

an employee found disqualified for federal employment); 5 C.F.R. § 731.304

(providing that “the employing agency must remove the . . . employee” pursuant 

to OPM’s decision); see also 5 C.F.R. § 752.401(b)(10) (referring to actions 

“taken or directed” under part 731). It is true that OPM makes the underlying 

decision and the role of the employing agency is essentially ministerial. 

However, 5 U.S.C. § 7513 does not require that the agency taking the action be 

the same agency that makes the decision underlying the action. 

¶11 In our original decisions in Aguzie and Barnes, we speculated that if an 

OPM-directed removal were appealable under 5 U.S.C. § 7513(d), the employing 

agency would be the proper respondent on the grounds that it effected the action. 

Aguzie, 112 M.S.P.R. 276, ¶ 5; Barnes, 112 M.S.P.R. 273, ¶ 5. Upon further 

consideration, we are now persuaded that this is not the case. While we are 

aware of no statute or regulation defining which agency is the proper respondent 

in an appeal before the Board, we observe that under 5 U.S.C. § 7701(c), it is the 
7

“decision of the agency” which the Board will sustain or not sustain. In the case 

of a directed suitability removal, the action, though effected by the employing 

agency, is the result of a decision by OPM - a decision with which the employing 

agency had no choice but to comply and which it may or may not care to defend. 

We therefore find that, regardless of whether a directed removal action for 

suitability reasons is appealable under 5 U.S.C. § 7513(d), it is incumbent on 

OPM to support the underlying decision by a preponderance of the evidence. See 

5 U.S.C. § 7701(c)(1)(B).5

 

Title 5 U.S.C. chapter 75 subchapter II covers suitability-based removals.

¶12 The next question to be considered is whether an OPM-directed removal6

for suitability reasons is an action covered by 5 U.S.C. chapter 75 subchapter II. 

Title 5 U.S.C. § 7512 provides that, with certain enumerated exceptions, chapter 

75 subchapter II covers the following actions: a removal, a suspension of more 

than 14 days, a reduction in grade, a reduction in pay, and a furlough of 30 days 

or less. The complete list of exceptions is as follows: 

(A) a suspension or removal under section 7532 of this title; 

 

5

 We recognize the peculiarity of finding that the term “agency” means the employing 

agency in the context of 5 U.S.C. § 7513(a), but OPM in the context of 5 U.S.C. 

§ 7701(c). That result, however, is a consequence of Civil Service Rule V and OPM’s 

own regulations, which deprive the employing agency of the discretion to take or not 

take an OPM-directed removal. In its amicus brief, the Department of the Treasury 

suggests that the term “agency” as used in 5 U.S.C. chapter 77 applies exclusively to 

employing agencies, and therefore cannot refer to OPM outside its capacity as an 

employer. There is no merit to that argument, as it is well-established that appeals of 

OPM retirement decisions are governed by 5 U.S.C. § 7701. See Garza v. Office of 

Personnel Management, 83 M.S.P.R. 336, ¶ 16 (1999), and cases cited therein. 

Therefore, OPM is an “agency” for purposes of chapter 77, regardless of the capacity in 

which it acts in a particular case. 

6

 It is well settled that a dismissal based on material misrepresentation in appointment 

constitutes a removal action, not a voiding of the appointment. See Devine v. 

Sutermeister, 724 F.2d 1558, 1563-64 (Fed. Cir. 1983), superseded by rule on other 

grounds as stated in Bloomer v. Department of Health & Human Services, 966 F.2d 

1436 (Fed. Cir. 1992). 
8

(B) a reduction-in-force action under section 3502 of this title; 

(C) the reduction in grade of a 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. 

Notably, the list does not include suitability actions taken under 5 C.F.R. part 731 

or any of its underlying authorities. Under canons of statutory interpretation, 

where a statute enumerates certain exceptions to a general rule, other 

unenumerated exceptions are excluded. Andrus v. Glover Const. Co., 446 U.S. 

608, 616-17 (1980). Applying that principle, we may readily infer that 

OPM-directed removals under 5 C.F.R. part 731 are among the actions covered 

by the subchapter. 

¶13 Notwithstanding the clear language of the statute, OPM has promulgated 

regulations that purport to exempt removals under 5 C.F.R. part 731 from 

coverage under 5 C.F.R. part 752, which incorporates 5 U.S.C. chapter 75 

subchapter II. See C.F.R. § 752.301. Specifically, 5 C.F.R. § 731.203(f) 

provides that “an action to remove . . . an employee for suitability reasons under 

. . . part 731 is not an action under part 752.” Title 5 C.F.R. § 752.401(b)(10) 

similarly provides that part 752 procedures do not apply to actions “taken or 

directed by [OPM] under part 731 . . . of this chapter.” These regulations, if 

valid, would preclude the Board from adjudicating an OPM-directed removal 

pursuant to 5 C.F.R. part 731 under the procedures and standards applicable to 

adverse actions under 5 U.S.C. chapter 75 subchapter II. OPM concedes, as it 

must, that its regulations cannot override statute. See Oral Argument Transcript 

at 66. We are therefore faced with the question of whether OPM’s regulations at 

5 C.F.R. §§ 731.203(f) and 752.401(b)(10) can be reconciled with 5 U.S.C. 

§ 7512. 
9

¶14 In defense of its regulations, OPM appeals to the fact that the regulatory 

distinction between suitability actions and adverse actions predates the enactment 

of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 

1111. See 5 C.F.R. §§ 731.302(c), 752.103(b)(2) (1978) (excluding removals 

directed by the Civil Service Commission from coverage under part 752). OPM 

first contends that Congress preserved that distinction through the Savings 

Provision at § 902(a) of the CSRA, which provides that “[e]xcept as otherwise 

provided in this Act . . . all executive orders, rules, and regulations affecting the 

Federal service shall continue in effect, according to their terms, until modified, 

terminated, superseded, or repealed by the President [or OPM].” See 5 U.S.C. 

§ 1101 note. However, OPM neglects to consider that it long ago rendered the 

Savings Provision moot by modifying its own regulations to implement the 

relevant portions of the CSRA, including 5 U.S.C. § 7512. See 44 Fed. Reg. 

47,029 (Aug. 10, 1979) (implementing subchapters I and II of chapter 75); see 

also 44 Fed. Reg. 47,523 (Aug. 14, 1979) (modifying 5 C.F.R. part 731 to 

recognize transfer of function from Civil Service Commission to OPM). Having 

modified its regulations following enactment of the CSRA, OPM can no longer 

rely on the Savings Provision. 

¶15 OPM goes on to cite Lackhouse v. Merit Systems Protection Board, 

773 F.2d 313 (Fed. Cir. 1985), for the proposition that Congress is presumed to 

be aware of the existence of civil service rules in enacting statutes and, if it 

intends to amend or repeal them, will so indicate. See id. at 316 n.6, 317 

(finding that the Veterans Preference Act of 1944 did not alter the co-existence of 

the “rule of three” with recognition of veterans’ preference). Congress, OPM 

rightly observes, has not expressed an intent to repeal Civil Service Rule V, 

which is the immediate source of OPM’s authority to make suitability 

determinations and to direct employing agencies to remove employees found to 

be disqualified for federal service. See 5 C.F.R. §§ 5.2(a), 5.3(1). Rule V, 

however, is silent on the question of whether the OPM-directed suitability 
10

removal of a tenured employee is covered by 5 U.S.C. chapter 75 subchapter II. 

The implementing regulations at 5 C.F.R. §§ 731.304(f) and 752.401(b)(10), 

which purport to exclude suitability actions from coverage under the subchapter, 

are not civil service rules, nor have they ever had that status. Furthermore, unlike 

the “rule of three” at issue in Lackhouse, the regulations at issue here facially 

conflict with the relevant portions of the CSRA. Cf. Lackhouse, 773 F.2d at 316 

(relying on the absence of a facial conflict between the “rule of three” and the 

portions of the CSRA concerning veterans’ preference). 

¶16 OPM further appeals to the principle that the regulations of an agency 

exercising rulemaking authority delegated to it by Congress are generally entitled 

to deference. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 843-44 (1984). It is true that Congress has expressly 

authorized OPM to prescribe regulations implementing 5 U.S.C. chapter 75 

subchapter II, except with respect to matters within the Board’s rulemaking 

authority. See 5 U.S.C. § 7514. However, when reviewing an agency’s 

construction of a statute, “[f]irst, always, is the question whether Congress has 

spoken directly to the precise question at issue. If the intent of Congress is clear, 

that is the end of the matter; for the court, as well as the agency, must give effect 

to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 

842-43. Only if the statute is silent or ambiguous with respect to the specific 

issue will the inquiry proceed to the question of whether the agency’s 

interpretation is based on a permissible construction of the statute. Id. Hence, in 

order to establish that its regulations at 5 C.F.R. §§ 731.203(f) and 752.401(b)(1) 

are entitled to Chevron deference, OPM must, as a threshold matter, establish 

that, notwithstanding the plain language of 5 U.S.C. § 7512, Congress has not 

directly addressed the question of whether chapter 75 subchapter II covers 

suitability-based removals of tenured employees. 

¶17 In support of that effort, OPM cites Burns v. United States, 501 U.S. 129

(1991), superseded by rule as stated in United States v. Carey, 382 F.3d 387
11

(3d Cir. 2004), for the proposition that, as a matter of statutory interpretation, 

“not every silence is pregnant,” and that “[a]n inference drawn from 

congressional silence cannot be credited when it is contrary to all other textual 

and contextual evidence of congressional intent.” Id. at 136. Here, OPM 

contends, the contextual evidence establishes that Congress did not intend to 

place suitability actions within the scope of 5 U.S.C. chapter 75 subchapter II. 

Congress, OPM explains, crafted the list of exceptions under 5 U.S.C. § 7512 in 

order to conform the section with other provisions of Title 5, including the new 

removal and demotion provisions at 5 U.S.C. chapter 43. See 5 U.S.C. 

§ 7512(D); S. Rep. No. 95-969 at 50, as reprinted in 1978 U.S.C.C.A.N. at 2772. 

By contrast, OPM argues, Congress had no occasion to specify that suitability 

removals were not covered, because suitability procedures were not codified 

under Title 5 and had already long coexisted with chapter 75 as a distinct basis 

for removal. Thus, OPM contends, the absence of suitability actions from the list 

of exclusions under 5 U.S.C. § 7512 does not require a finding that suitability 

actions are covered under the subchapter. See OPM Reply Brief at 10-12. 

¶18 We are not persuaded by OPM’s analysis. In Burns, the Court interpreted a 

federal rule of criminal procedure, which at that time provided a defendant the 

right to comment on a proposed departure from sentencing guidelines, but did not 

explicitly require the court to notify the defendant that it was considering such a 

departure. The majority read a notice requirement into the rule, reasoning that 

without a right to notice, the right to comment would be meaningless and thus not 

to infer a right to notice “would render what Congress has expressly said absurd.” 

Burns, 501 U.S. at 135-36 (emphasis in original). That rationale does not apply 

here, however, for OPM has not shown that reading 5 U.S.C. § 7512 to cover 

suitability removals would render it or any other express statutory provision 

meaningless or absurd. The statutes underlying OPM’s authority to direct 

suitability removals, 5 U.S.C. §§ 1302, 3301, and 7301, are completely silent on 

the question of whether such actions are covered by 5 U.S.C. chapter 75 
12

subchapter II. OPM also neglects to consider that in Burns, the Court found that 

due process considerations favored a broad reading of the rule at issue: 

“Notwithstanding the absence of express statutory language, this Court has 

readily construed statutes that authorize deprivations of liberty or property to 

require that the Government give affected individuals both notice and a 

meaningful opportunity to be heard.” Id. at 137-38 (emphasis in original). Here, 

due process concerns would, if anything, favor a broader interpretation of Board 

appeal rights. 

¶19 Furthermore, there is evidence that Congress did consider suitability 

removals when defining the scope of 5 U.S.C. chapter 75 subchapter II. In the 

Senate Report accompanying the CSRA, the Senate’s Committee of Government 

Affairs noted that in 1976, a total of 17,157 employees were dismissed from 

federal service. S. Rep. No. 95-969 at 9 (1978). The committee went on to 

specify the numbers of employees dismissed on various different grounds, 

including, inter alia, 418 employees “separated for suitability reasons.” Id. The 

report later states: “The actions covered in [chapter 75] subchapter II may be 

appealed by the employee to the board. These provisions govern any such action 

where the basis of the action is conduct or any other cause besides unacceptable 

performance.” Id. at 46 (emphasis added). In light of the report’s prior reference 

to suitability as a cause for dismissal, it would be reasonable to conclude that 

Congress did contemplate that suitability removals of tenured employees would 

be covered under 5 U.S.C. chapter 75 subchapter II. Moreover, to expand the 

subchapter to include the suitability removal of a tenured employee, thereby 

granting the employee a statutory right of appeal, would be consistent with the 

expressly stated intent of Congress that “Federal employees should receive 

appropriate protection through increasing the authority and powers of the Merit 

Systems Protection Board in processing hearing and appeals affecting Federal 

employees.” CSRA, § 3(3), 5 U.S.C. § 1101 note. 
13

¶20 In the absence of compelling evidence of contrary Congressional intent, we 

discern no reason to abandon a plain language reading of 5 U.S.C. § 7512. 

Indeed, even if such evidence existed, we would have no choice but to abide by 

the unambiguous language of the statute. See Van Wersch, 197 F.3d at 1151. To 

the extent OPM’s regulations at 5 C.F.R. §§ 731.203(f) and 752.401(b)(10) are 

inconsistent with our statutory obligation to hear appeals under 5 U.S.C. 

§ 7513(d), we decline to follow them. Cf. DoPadre v. Office of Personnel 

Management, 69 M.S.P.R. 346, 351-52 (1996) (invalidating regulation intended 

to limit Board’s authority to review OPM’s application of regulations governing 

court orders affecting retirement benefits). 

¶21 OPM has also argued that the Board’s regulation at 5 C.F.R. § 1201.3(a), 

which lists the actions appealable before the Board, distinguishes between a 

removal “for such cause as will promote the efficiency of the service,” pursuant 

to 5 U.S.C. chapter 75 subchapter II and 5 C.F.R. part 752, from “the 

disqualification of an employee or applicant because of a suitability 

determination,” pursuant to 5 C.F.R. part 731. See 5 C.F.R. § 1201.3(a)(2), (7). 

However, OPM has not shown that the appealable actions listed at 5 C.F.R. 

§ 1201.3(a) must be read as mutually exclusive. Indeed, they are not. In Lovshin 

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

reviewing court held that an agency may take a mixed removal action, relying on 

chapter 43 for “unacceptable performance” with an alternative or additional 

charge under chapter 75 “for such cause as will promote the efficiency of the 

service.” Id. at 843. In such a case, the court explained, “the appropriate 

standard of review by MSPB should be applied according to the basis for each 

specific charge.” Id. Consequently, we would adjudicate the removal as both an 

adverse action under 5 C.F.R. § 1201.3(a)(1) and a performance-based action 

under § 1201.3(a)(2). Similarly, our regulations do not preclude us from 

construing the appellants’ removals as appealable actions under both 5 C.F.R. 

§ 1201.3(a)(2) and (7). 
14

The appellants are employees for purposes of 5 U.S.C. chapter 75 subchapter II.

¶22 The final requirement for coverage under 5 U.S.C. § 7513(a) is that the 

individual against whom the action is taken be an “employee.” For purposes of 

5 U.S.C. chapter 75 subchapter II, the term “employee” is defined at 5 U.S.C. 

§ 7511(a)(1), and includes an individual in the competitive service who is not 

serving a probationary or trial period under an initial appointment, or who has 

completed 1 year of current continuous service under other than a temporary 

appointment limited to 1 year or less. See McCormick v. Department of the Air 

Force, 307 F.3d 1339, 1343-44 (Fed. Cir. 2002). It is undisputed that both 

Mr. Aguzie and Ms. Barnes satisfy that definition. 

¶23 This is not to say, however, that their status as tenured employees renders 

them immune from suitability actions. The appellants contend that by taking 

suitability actions against tenured employees, OPM has exceeded its statutory 

authority, in particular, 5 U.S.C. § 3301, which provides that 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 the service; [and] 

(2) ascertain the fitness of applicants as to age, health, character, 

knowledge, and ability for the employment sought[.] 

As the appellants rightly point out, these provisions are concerned with the 

admissions process and the fitness of applicants, and do not directly concern 

tenured employees. However, we find nothing in the language of the statute that 

would preclude OPM from making an after-the-fact determination that a tenured 

employee serving an appointment subject to investigation was improperly 

admitted or was unfit at the time he applied. Furthermore, Rule V provides that 

the Director of OPM may determine “after appointment” whether the civil service 

rules and regulations were met with respect to that appointment. 5 C.F.R. 
15

§ 5.2(a). Neither 5 U.S.C. § 3301 nor Rule V set a deadline for making such a 

determination or for taking corrective action based on that determination. 7

 

¶24 Consistent with these underlying authorities, the regulations at 5 C.F.R. 

part 731 allow for an appointment to remain subject to investigation after the 

probationary period is complete. 5 C.F.R. § 731.104(b)(1). OPM has also 

reserved the authority to make suitability determinations and take or direct 

suitability actions against an “employee,” defined for purposes of 5 C.F.R. part 

731 as an individual who has completed the first year of a subject-toinvestigation appointment. See 5 C.F.R. §§ 731.101(b), 731.105(d). Thus, 

individuals who qualify as tenured employees under 5 U.S.C. § 7511(a)(1)(A), 

whether by virtue of having completed a probationary period or having met the 1 

year current continuous service criterion, are not on that account exempt from 

OPM-initiated suitability actions. Our holding is rather that the appellants’ 

removals, though authorized by 5 C.F.R. part 731, are also subject to the 

requirements of 5 U.S.C. chapter 75 subchapter II. 

The OPM-directed removal of a tenured employee is “taken under” 5 U.S.C. 

§ 7513 and therefore appealable under 5 U.S.C. § 7513(d).

¶25 For the reasons discussed above, we find that the directed removal of a 

tenured employee falls under 5 U.S.C. § 7513(a), and may therefore be taken only 

for such cause as will promote the efficiency of the service.8 This would appear 

 

7

 Prior to the CSRA, the regulations at 5 C.F.R. part 731 provided that appointments 

would remain subject to investigation for no longer than 1 year after the effective date 

of the appointment, except in cases involving intentional false statement or deception or 

fraud in examination or appointment. 5 C.F.R. § 731.301(b) (1978). Although OPM’s 

current regulations do not set a time limit for investigation, they contemplate that an 

investigation will not continue indefinitely, but must in each case conclude in a 

suitability determination, i.e., a decision that the individual is suitable or not suitable 

for employment in covered positions in the federal government or in a specific agency. 

See 5 C.F.R. § 731.104(b)(1), (3). 

8

 We note in passing that all suitability actions are subject to an “efficiency of the 

service” standard, though not necessarily the same “efficiency of the service” standard 

prescribed by 5 U.S.C. § 7513(a). See 5 U.S.C. § 3301(1) (providing that the President 
16

to resolve the question of whether the appellants have a right of appeal under 

5 U.S.C. § 7513(d), which provides that an employee “against whom an action is 

taken under this section” may appeal to the Board. OPM contends, however, that 

the appellants’ removals were not “taken under” 5 U.S.C. § 7513 because it 

invoked 5 C.F.R. part 731 as the authority for directing the actions. Hence, OPM 

argues, the appellants are not entitled to appeal their removals under 5 U.S.C. 

§ 7513(d). 

¶26 This argument is without merit. It is a well-established principle of Board 

law that the Board is not obliged to accept the assertion of a party as to the nature 

of a personnel action, but may make its own independent determination regarding 

the matter. Cruz-Packer v. Department of Homeland Security, 102 M.S.P.R. 64, 

 

may “prescribe such regulations for the admission of individuals into the civil service in 

the executive branch as will best promote the efficiency of the service”). This fact is 

obscured somewhat by the regulation at 5 C.F.R. § 731.201, which states that the 

standard for a suitability action is that it “protect the integrity or promote the 

efficiency” of the service. The use of the word “or” would seem to permit suitability 

actions that protect the integrity of the service but do not promote the efficiency of the 

service. See Van Wersch, 197 F.3d at 1151 (“the word ‘or’ unambiguously signifies 

alternatives”). OPM has stated, however, that it included the word “integrity” to clarify 

that integrity and honest conduct are part of the efficiency of the service standard as 

used in the suitability context: 

The current efficiency of the service language might inadvertently lead 

some to believe that efficiency and effectiveness are limited to their 

dictionary definitions, namely, the capacity to produce desired results 

with a minimum expenditure of energy, time or money, or the ability to 

produce results. In fact, the efficiency of the service standard as used by 

OPM in a suitability context always has been a broader concept that 

involves, among other things, the integrity of the competitive examination 

system . . . . Adding the word integrity makes it even clearer that 

integrity and honest conduct always have been an important part of the 

existing efficiency of the service standard. 

65 Fed. Reg. 82,239, 82,241 (Dec. 28, 2000); see Doerr v. Office of Personnel 

Management, 104 M.S.P.R. 196, ¶ 10 (2006). Hence, as OPM employs the terms, 

actions that protect the integrity of the service are a subset of those actions that promote 

the efficiency of the service. It is unclear why OPM believed it would be helpful to 

express a part-whole relationship with a disjunction. 
17

¶ 5 (2006); Russell v. Department of the Navy, 6 M.S.P.R. 698, 704 (1981). 

Thus, it is the nature of a personnel action, not the agency’s characterization of 

the action, that determines the Board’s jurisdiction. Cruz-Packer, 102 M.S.P.R. 

64, ¶ 5; Czarkowski v. Department of the Navy, 87 M.S.P.R. 107, ¶ 20 (2000). 

¶27 We recognize that an exception to this principle exists in the case of 

performance-based actions. In Lovshin, our reviewing court held that an agency 

may, at its discretion, rely on either chapter 75 or chapter 43 to take a 

performance-based action, thereby requiring the Board to adjudicate the appeal 

under the chosen standard. 767 F.2d at 843. According to OPM, Lovshin stands 

for the general proposition that, where there exists a choice of adjudicatory 

procedures, it is up to the agency initiating the action to decide which one to 

follow. See OPM Reply Brief at 9; see also Department of Veterans Affairs Brief 

at 3; Department of the Treasury Brief at 5. Hence, OPM argues, the Board 

cannot require that an action taken under the authority of 5 C.F.R. part 731 be 

adjudicated under the standards applicable to 5 U.S.C. § 7513. 

¶28 As we explained in Aguzie, however, the holding of Lovshin is predicated 

on the fact that chapter 43 and chapter 75 procedures are, by statute, mutually 

exclusive with respect to particular charges. Aguzie, 112 M.S.P.R. 276, ¶ 4 n.2; 

see 5 U.S.C. § 7512(D); Lovshin, 767 F.2d at 843. Because of that express 

statutory exclusion, an agency may prohibit the Board from applying chapter 75 

standards by invoking chapter 43 as the sole authority for its performance based 

action. Aguzie, 112 M.S.P.R. 276, ¶ 4 n.2. Here, 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. Id. Indeed, as discussed 

above, 5 U.S.C. § 7512 must be read to include suitability removals within its 

scope. OPM objects to this analysis, arguing that the Board “fails to take 

cognizance of the 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.” OPM Brief at 21. In making that 
18

argument, however, OPM conflates the statutes underlying its suitability 

authority with the regulations at 5 C.F.R. part 731. It is only the latter that 

purport to exclude suitability removals from coverage under 5 U.S.C. chapter 75 

subchapter II. 

¶29 This case further differs from Lovshin in that a tenured employee removed 

for performance reasons is guaranteed a statutory right of appeal, whether it be 

under 5 U.S.C. § 7513(d) or 5 U.S.C. § 4303(e). By contrast, were we to find 

that the OPM-directed removal of a tenured employee is not “taken under” 5 

U.S.C. § 7513, merely on the grounds that OPM did not cite that authority, the 

affected employee would be left with no appeal rights apart from those OPM 

deigns to provide. See Folio, 402 F.3d at 1353 (finding that, with respect to a 

suitability action appealable only under 5 C.F.R. § 731.501, “Congress granted 

OPM the authority to determine the scope of the Board’s authority”). To permit 

such a result would undermine the stated intent of Congress to provide 

“appropriate protection” to tenured federal employees by increasing the powers of 

the Board. See 5 U.S.C. § 1101 note; Wassenaar v. Office of Personnel 

Management, 21 F.3d 1090, 1092 (Fed. Cir. 1994) (a statute should be construed 

to avoid an absurd result when it can be given a reasonable application consistent 

with its words and legislative purpose). 

¶30 Consistent with its stated intent to provide appropriate protection to federal 

employees, Congress has placed limits on the authority of OPM in matters over 

which the Board has primary responsibility. Among the functions vested in the 

Director of OPM by Congress are the following: 

[E]xecuting, administering, and enforcing – 

(A) the civil service rules and regulations of the President and the 

Office and the laws governing the civil service: and 

(B) the other activities of the Office including retirement and 

classification activities; 
19

except with respect to functions for which the Merit Systems 

Protection Board or the Special Counsel is primarily 

responsible[. . . .] 

5 U.S.C. § 1103(a)(5) (emphasis added). Thus, although Congress clearly 

established that OPM is the primary authority in most matters involving the civil 

service, it also reserved certain matters for the Board or the Special Counsel, and 

it denied OPM authority over those matters. Congress explicitly gave the Board 

authority to adjudicate appeals involving the removal of employees under chapter 

75. 5 U.S.C. §§ 7512(1), 7513(d). We therefore find that although OPM has 

authority to prescribe regulations establishing how agencies may take an action 

under chapter 75, 5 U.S.C. § 7513(a), OPM lacks authority to prescribe 

regulations that remove such actions from the Board’s jurisdiction or otherwise 

inhibit the Board’s full adjudication of appeals arising from such actions. 

¶31 Based on the foregoing, we conclude that, because the removal actions on 

appeal were taken by an agency, covered under 5 U.S.C. § 7512, and taken 

against employees as defined by 5 U.S.C. § 7511, they are subject to the 

efficiency of the service requirement of 5 U.S.C. § 7513(a) and appealable under 

5 U.S.C. § 7513(d). 

Scope of the Board’s review

¶32 It is well-established that the Board’s jurisdiction under 5 U.S.C. § 7513(d) 

includes review of an agency’s penalty determination. See generally Douglas v. 

Veterans Administration, 5 M.S.P.R. 280 (1981). In order to find that a removal 

based on a sustained charge of misconduct satisfies the “efficiency of the service” 

criterion of 5 U.S.C. § 7513(a), the Board must make two distinct determinations: 

first, whether there is an nexus between the appellant’s conduct and the efficiency 

of the service, and second, whether the penalty is appropriate. Douglas, 

5 M.S.P.R. at 302-03. That is, the Board must consider not only whether any 

disciplinary action is warranted, but whether the particular penalty in a given 

case takes reasonable account of the factors relevant to the promotion of service 
20

efficiency. Id. at 303. Accordingly, notwithstanding any contrary provision at 

5 C.F.R. § 731.501, we may sustain the appellants’ removals only if we find both 

components of the efficiency of the service standard have been established by a 

preponderance of the evidence. 5 U.S.C. §§ 7513, 7701(c)(1)(B); see Devine, 

724 F.2d at 1564 (while obtaining an appointment through misrepresentation may 

properly form the basis for removal, it would be a “quantum leap of logic” to 

conclude that review of the penalty is thereby barred). 

¶33 In the typical case, the Board will defer to an agency’s penalty 

determination and modify a penalty only when it finds the agency failed to weigh 

the relevant factors or that it clearly exceeded the bounds of reasonableness in 

determining the penalty. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, 

¶ 20 (2001); Douglas, 5 M.S.P.R. at 306. The principle of deference derives from 

the “unassailable proposition” that penalty determinations are judgment calls 

within the discretion of the employing agency. Lachance v. Devall, 178 F.3d 

1246, 1251 (Fed. Cir. 1999); see Beard v. General Services Administration, 

801 F.2d 1318, 1322 (Fed. Cir. 1986) (“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 . . .”). This rationale does not apply, however, when 

OPM, rather than the employing agency, makes the penalty determination. The 

factors pertinent to determining the appropriateness of the penalty under the 

efficiency of the service standard of 5 U.S.C. § 7513(a) are not limited to the 

factors OPM may consider under 5 C.F.R. § 731.203(c), but may also include 

matters which the employing agency is in a better position to evaluate. Such 

factors may include, for example, the effect of the offense upon the employee’s 

ability to perform at a satisfactory level and its effect upon supervisors’ 

confidence. See Douglas, 5 M.S.P.R. at 305-06. Accordingly, we find that in an 

appeal of an OPM-directed suitability removal, the Board must conduct an 

independent review of the penalty in light of the relevant Douglas factors, which 

may include facts not in OPM’s possession. In this regard, we stress that the 
21

ultimate burden is upon the deciding agency, in this case OPM, to persuade the 

Board of the appropriateness of the penalty imposed. Id. at 307. 

¶34 We further find that our statutory jurisdiction extends to review of the 

other suitability actions on appeal, i.e., debarment and cancellation of 

eligibilities. While those actions would not by themselves be covered under 

5 U.S.C. § 7512, in conjunction with the removal actions they lie within our 

jurisdiction as components of a unitary penalty arising from the same underlying 

misconduct. See Brewer v. American Battle Monuments Commission, 779 F.2d 

663 (Fed. Cir. 1985) (finding that the Board had jurisdiction to consider a 

reassignment imposed in connection with a demotion as part of a unified penalty 

arising out of the same set of circumstances); White v. Government Printing 

Office, 108 M.S.P.R. 355 (2008) (asserting jurisdiction over a unitary penalty 

including both a reduction in grade and a 14-day suspension); see also Campbell 

v. Department of Veterans Affairs, 93 M.S.P.R. 70, ¶ 8 (2002) (remanding for a 

determination of whether a 14-day suspension was reviewable, in conjunction 

with a reduction in pay, as part of a unitary penalty). OPM has argued that the 

“unitary penalty” principle should not apply in these cases because debarment 

and cancellation of eligibilities are not intended to compound the severity of a 

removal action, but rather serve to prospectively regulate the conduct of 

examinations and admission into the federal service. However, the court in 

Brewer did not address whether the penalties imposed by the agency served the 

same end, but rather relied on the fact that the penalties arose “out of the same set 

of circumstances of which Mr. Brewer was found culpable.” Brewer, 779 F.2d at 

664. Here, with respect to both Mr. Aguzie and Ms. Barnes, OPM relied on the 

same incidents of misconduct as the basis for all of its suitability actions. We 

therefore find no basis for distinguishing these appeals from Brewer. 

¶35 We also note that a determination that the Board can review the suitability 

removal of a tenured employee, but not the debarment or cancellation of 

eligibilities that are part of the same OPM decision, could lead to an absurd 
22

result. If the Board were to reverse a removal but find that it lacked the authority 

to reverse the debarment or cancellation of eligibilities, it would be ordering the 

return to federal employment of an employee whom OPM still deems ineligible to 

hold a federal position. We therefore conclude that the Board’s review of the 

removal of an employee for suitability reasons must also include review of any 

debarment or cancellation of eligibilities that arise out of the same circumstances. 

ORDER

¶36 Having determined that the suitability actions on appeal are reviewable 

under 5 U.S.C. § 7513(d), we REMAND both appeals for further adjudication. 

With respect to both Mr. Aguzie and Ms. Barnes, the administrative judge shall 

determine on remand whether the suitability actions on appeal satisfy the 

efficiency of the service standard of 5 U.S.C. § 7513(a). In addition, the 

administrative judge shall determine whether the appellants were provided the 

procedures described at 5 U.S.C. § 7513(b) and, if not, whether the error was 

likely to have caused OPM to reach a different conclusion from the one it would 

have reached in the absence or cure of the error.9

 See 5 U.S.C. § 7701(c)(2)(A); 

Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). 

Should the administrative judge reverse or mitigate one or both of the removal 

actions, the employing agency or agencies shall be responsible for providing back 

pay and benefits, as appropriate. See Brackins v. Office of Personnel 

Management, 60 M.S.P.R. 260, 263 (1993). 

¶37 We also find that further adjudication is necessary to resolve Mr. Aguzie’s 

claim of race and national origin discrimination. In finding the discrimination 

claim unproven, the administrative judge relied on Mr. Aguzie’s failure to 

identify a comparator employee outside his protected group. However, the Board 

 

9 Title 5 U.S.C. § 7513(b) does not require that the procedures listed under that 

paragraph be provided by the employing agency. 
23

has recently clarified that comparator evidence is not essential to a prima facie 

case of disparate treatment discrimination. Davis v. Department of the Interior, 

114 M.S.P.R. 527, ¶¶ 6-8 (2010). While evidence of discrimination may include 

proof that similarly situated employees outside the protected class were treated 

differently, an appellant may also prevail on a discrimination claim by 

introducing evidence: (1) that the agency lied about its reason for taking the 

action; (2) of inconsistency in the agency’s explanation; (3) of failure to follow 

established procedures; (4) of general treatment of minority employees or those 

who engage in protected activity; or (5) of incriminating statements by the 

agency. See id., ¶ 8. Accordingly, the administrative judge shall provide 

Mr. Aguzie the opportunity to present such evidence and then reconsider his 

discrimination claim in light of Davis. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.