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OFKICK OF THE GENERAL COUNSKl. 

UNITEDSTATES 

OFFICE OF PERSONNEL MANAGEMENT 

1900 E Street, NW, Suite 7353 

Washington, D.C. 20415-1300 

Phone (202) 606-1700 1-ax (202) 606-0082 

FAX TRANSMITTAL 

TO: Honorable William D. Spencer, Clerk of the Board 

Office: Merit Systems Protection Board 

Phone: (202) 653-7200 

Fax: (202)653-7130 

FROM: Robert J. Girouard 

Office: Ofticc ofthe General Counsel 

U.S. Office ofPersonnel Management 

Phone: (202)606-1700 

Fax: (202) 606-0082 

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DATE: September 22, 2010 

PAGES: 7 (including cover) 

The Office ofPersonnel Management (Agency) hereby respectfiilly submits its Supplemental 

Reply to the Response of Appellant Jenee Ella Hunt-O'Neal in the consolidated appeal of 

AiLUzic, et al. v. OPlvL Nos. DC-0731-09-0261-R-1, DC-0731-09-0260-R-1, AT-0731-09-0240-

l-l , and CH-0731-09-0578-1-1. . 
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UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTRCTION BOARD 

Hyginus U. Aguzic, Holley C Barnes, 

Jenee Ella Hunt-O'Neal, and 

James A, Scott, 

Appellants, 

v. 

Office ofPersonnel Management, 

Agency. 

) 

) Docket Kos. 

) 

)DC-0731-09-0261-R-l 

)DC-0731-09-0260-R-1 

) AT-0731-09-0240-1-1 

)CH-0731-09-0578-1-1 

) 

) 

) SEP n 2010 

) - . 

) 

J 

OFFICE OF PERSONNEL MANAGEMENT'S SUPPLEMENTAL REPLY 

TO THE RESPONSE OF APPELLANT JENEE ELLA HUNT-O^NEAL 

Introduction 

On December 30, 2008, The Office ofPersonnel Management (OPM; Agency) found Jenee Ella 

IIunt-O'Neal (the Appellant) unsuitable for Federal employment bayed on two charges, (1) misconduct 

or negligence in employment and (2) material, intentional false statement or deception or fraud in 

examination or appointment, and directed the Internal Revenue Service (IRS) to remove her. Himt 

O'Neal V. Office of Pers. Mgmt., No. AT-0731-09-0240-T-1 (M.S.P.B. Tnit. Dec. filed Sept. 11, 2009). 

The Appellant appealed to the Merit Systems Protection Board (Board). Following a hearir.g, the 

presiding administrafive judge sustained both charges, found that OPM's detertitination of unsuitability 

was supported by a preponderance ofthe evidence, and affirmed OPM's suitability action. Id. 
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The Appellant filed a pctifion for review on September 23, 2009. On October 19; 2009, OPM 

moved for an extension of time to respond to the petition, asserting that the appeal presented the same 

issues raised in the Aguzic and Barnes appeals. In an October 22, 2009 order, the Board consolidated 

the appeal wilh Aguzie., el al. v. OPM. 

In its opening brief in rhe consolidated appeal,. OPM asserted that "the order consolidating the 

Hunt-O'Neal appeal to the other three appeals may have been improvidently grantcci," since "Appellant 

Hunt-O'Neal apparently would not, based on her sei-vice histoiy, meet the definition of an 'employee' in 

5 U.S.C. § 7511 (a)(1)(A)." (Agency Opening Br. 2 n. 1, Dec. 7, 2009, citing the Agency File, tabs 2a, 

2n (Notification ofPersonnel Action forms showing that the appellant was appointed Januajry 7, 2008 

subject to a one-year probationary period, and removed Jess than one year later, on J anuary 5, 2009))-

On August 9, 2010, the Board issued orders to pro bono counsel for the Appellant, giving her the 

opportunity to file a response, and giving OPM the opportunity to file a supplemental reply. The 

Appellant filed her response brief on August 31, 2010. OPM hereby replies to the /appellant's response 

brief' 

Argument 

At the fime of her directed removal, the Appellant, unlike the other appellanis in this, 

consolidated appeal, could not meet the definition of an "employee" in 5 U.SC § 751 l(a)(r). The 

Appellant admits that the IRS appointed her on January 7, 2008; that OPM ordered her remi:»ved on 

December 30, 2008 based on an unfavorable suitability determination; and that the IRS removed her less 

' The Appellant's :argumcnt concerning the merits ofthe other consolidated appellants' claims 

(Hunt-O'Netil Res. Br. 4-13, Aug. 31, 2010) are not relevant to the questions pre.^enLed in her own • 

appeal, and accordingly, arc not addressed in this reply. OPM replies in a separate brief to the August 

31, 2010 response brief of Holley C. Barnes. 
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than one year after her appointment, on January 5, 2009. (Hunt-O'Neal Res. Br. 2-3.) Funher, the 

Appelhuil cites her January 7, 2008 SF 50 Ibrm. {Td.'l.)^ This fonn documents that she had no military 

or civilian Federal service prior to January 7, 2008, and that she was appointed "subject to completion of 

[aj one year initial probafionary period beginning 01/7/08." (Agency File, tab 2n at I.) 

It is well settled that "a probationary employee with less than I year of current continuous 

service . . . has no statutory right to appeal [her] separation." Rivera v. Dep't of the Navy, 114 M.S.P.R. 

52, 53 (2010). An employing agency may refer a case involving an appointee's falsificatior to OPM for 

a suitability acfion under 5 CF.R. part 731, or may instead take a probationary action under 5 C.F.R. 

part 315 after giving notice to OPM. Gamble v. Dep't of the Army, 111 M.S.P.R, 529, 534 (2009). 

When OPM orders an appointee's removal as the result of an unfavorable suitability detennination under 

5 CF.R. part 73 L the appointee's right to appeal to the Board is found in Part 731, snd tlic procedures in 

Part 3 15 are inapplicable. Ward v. Dep'i of ihe Navy, 44 M.S.P.R. 493, 497-99 (1990); see aiso 

McChesney v. Dep't of Justice, 55 M.S.P.R. 512, 515-16 (1992), affd sub nom. McChesney v. Merit Sys. 

Prot. Bd., 5 F.3d 1503 (Fed. Cir. 1993) (table); Mumon v. Dep't of Justice, 55 M.S.P.R. 246, 251-52 

(1992). Because OPM ordered the Appellant's removal based on a suitability delerrninalion under 5 

C.F.R. Part 731, the Appellant was enfitled to appeal her removal only under Part 731 procedures, and 

she could not invoke the procedures in Part 315. 

^ Noiv/ithstanding the Appellant's admission thai she worked for the IRS for less than one year, 

and her favorable citation of record evidence showing that she does not otherwise meet the tZhapier 75 

defmifion of an "employee," she asserts that tiie Board cannot at this stage dispose cf her appeal, but 

must remand it "for a finding of fact as to her employment status at the time of her removal." (HuntO'NcaJ Res. Br. 12.) If the Appellant believes that she is an "employee" enfitled U) adverse action 

appeal rights under 5 U.S.C Chapter 75, she has the burden of proving the elements of the Board's 

jurisdicuon by preponderant evidence. 5 CF.R. § 1201.56(a)(2)(i). The Appellant, through counsel, has 

failed to make a jurisdictional showing, and has instead prollcrcd argument shovving that tho Board 

lacks jurisdicdon over her appeal. The Board should not accept her invitation to remand the 

jurisdictional question. ^ 

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Conclusion 

' For the foregoing reasons, and the rea.sons stated in the Agency's prior submissions in this appeal, 

the Appellant was enfified to appeal her removal only under 5 C.F.R. Part 731 procedures, fhc 

Appellant's September 23,2009 Pefifion for Review should be denied for failure to meet the Board's 

criteria for review. 

Enclosure: certificate of service 

Respectfully submitted, 

Elaine Kaplan 

General Counsel 

ftevbA E. Abow 

Assistant General Counsel 

for Merit Systems and Accountability 

Robert J. Girouard 

Agency Representative 

Office ofthe General Counsel 

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