UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2009 MSPB 178 

Docket No. DC-0731-09-0260-I-1 

Holley C. Barnes, 

Appellant, 

v. 

Office of Personnel Management, 

Agency. 

September 3, 2009 

Holley C. Barnes, Washington, D.C., pro se. 

Darlene M. Carr, Washington, D.C., for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

OPINION AND ORDER

¶1 The appellant has petitioned for review of the initial decision sustaining 

her removal and other actions taken pursuant to a suitability decision by the 

Office of Personnel Management (OPM). We find that the petition does not meet 

the criteria for review set forth at 5 C.F.R. § 1201.115, and we therefore DENY 

it. For the reasons set forth below, however, we REOPEN this case on our own 

motion under 5 C.F.R. § 1201.118, VACATE the initial decision, and REMAND 

the appeal for further proceedings. 
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BACKGROUND

¶2 On November 12, 2006, the Department of Homeland Security, Citizenship 

and Immigration Services (CIS), hired the appellant as a GS-13 Adjudication 

Officer, on a career-conditional appointment subject to a 1-year probationary 

period. See Initial Appeal File (IAF), Tab 4, Subtab 2cc. By letter dated 

December 1, 2008, OPM informed the appellant that it had found her unsuitable 

for her position and had taken 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 ending December 1, 2011. IAF, Tab 4, Subtab 2b 

at 1; see id. at 12 (OPM’s letter directing CIS to remove the appellant). The 

record does not include an SF-50 recording the appellant’s removal, but neither 

party disputes that CIS complied with OPM’s instruction. 

¶3 The appellant appealed OPM’s action, but she did not request a hearing. 

IAF, Tab 1 at 2. The administrative judge found that the Board had jurisdiction 

over the appeal under 5 U.S.C. § 7701 and 5 C.F.R. § 731.501. IAF, Tab 5 at 1. 

On the written record, the administrative judge sustained the charge and OPM’s 

suitability actions. Id., Tab 9, Initial Decision. In her petition for review, the 

appellant argues that the charge against her should not have been sustained, and 

that she is suitable for her former position. Petition for Review File, Tab 1 at 4, 

8. OPM has responded in opposition to the petition for review. Id., Tab 3. 

ANALYSIS

¶4 The appellant’s allegations and arguments do not show error in the initial 

decision. As in Aguzie v. Office of Personnel Management, 2009 MSPB 177, 

however, we REOPEN this case to address the question, not raised below or on 

petition for review, of whether the appellant is entitled to appeal her removal to 
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the Board as an adverse action under 5 U.S.C. chapter 75, subchapter II. Like the 

appellant in Aguzie, the instant appellant, at the time of her removal, occupied a 

competitive service position and had completed her 1-year probationary period. 

See IAF, Tab 4, Subtab 2cc. She therefore satisfies the definition of an 

“employee” at 5 U.S.C. § 7511(a)(1)(A) and, as a consequence, may have a 

statutory right to appeal her removal as an adverse action under chapter 75, 

subchapter II, notwithstanding OPM’s characterization of the removal as an 

action under 5 C.F.R. part 731. See Aguzie, 2009 MSPB 177, ¶¶ 4 n.2, 6. 

¶5 As Aguzie sets forth, our jurisdiction over adverse actions under 5 U.S.C. 

chapter 75, subchapter II, includes the authority to mitigate penalties. Id. ¶ 5; see 

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 296 (1981). Further, the 

respondent in an adverse action appeal under 5 U.S.C. chapter 75, subchapter II, 

would be the appellant’s employing agency, which actually effected the removal 

action, rather than OPM. See Aguzie, 2009 MSPB 177, ¶ 5. In addition, as we 

indicated in Aguzie, 2009 MSPB 177, ¶ 6, while OPM’s current suitability 

regulations may purport to exclude removals effected pursuant to an OPM 

suitability decision from the Board’s jurisdiction under 5 U.S.C. chapter 75, 

subchapter II, the effectiveness of such an attempted exclusion is in doubt. 

ORDER

¶6 The initial decision is VACATED. On remand, the parties shall be 

provided an opportunity to brief the question of whether the appellant is entitled 

to appeal her removal under 5 U.S.C. § 7513(d), and, if so, 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. Should the administrative 

judge find that the appellant has appeal rights under 5 U.S.C. § 7513(d), the 

appellant shall be granted 30 days from the date of the remand decision in which 

to file a timely appeal of her removal, with CIS as the respondent agency. Should 

the administrative judge find that one or more of the suitability actions on appeal 
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is within the Board’s jurisdiction under 5 C.F.R. § 731.501, the parties shall also 

be provided an opportunity to brief the question of how and whether OPM’s June 

16, 2008 revision of its suitability regulations may affect the scope of the Board’s 

review of those actions. See Aguzie, 2009 MSPB 177, ¶¶ 4 n.2, 6. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.