UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2009 MSPB 177 

Docket No. DC-0731-09-0261-I-1 

Hyginus U. Aguzie, 

Appellant, 

v. 

Office of Personnel Management, 

Agency. 

September 3, 2009 

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

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 that affirmed 

the Office of Personnel Management (OPM)’s suitability action.1

 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 

 

1 The administrative judge characterized the case as an appeal of a suitability 

determination. However, OPM’s regulation at 5 C.F.R. § 731.501(a), as revised 

effective June 16, 2008, states that it is the suitability action which may be appealed to 

the Board. Contra Folio v. Department of Homeland Security, 402 F.3d 1350, 1353 

(Fed. Cir. 2005) (Board’s review of a suitability decision does not include the ultimate 

action taken by the agency). 
2

REOPEN this case on our own motion under 5 C.F.R. § 1201.118, VACATE the 

initial decision, and REMAND for further proceedings. 

BACKGROUND

¶2 On May 17, 2006, the U.S. Commission on Civil Rights (USCCR) hired the 

appellant as a GS-9 Budget Analyst, on a career conditional appointment subject 

to a 1-year probationary period. Initial Appeal File (IAF), Tab 4(2qq). By letter 

dated December 15, 2008, OPM informed the appellant that it had found him 

unsuitable for his position and had taken the following actions: (1) directed 

USCCR to remove him from the rolls within 5 days of its receipt of the 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 

positions covered under 5 C.F.R. part 731; and (3) debarred him from competition 

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

December 11, 2011. IAF, Tab 4(2b). The record does not include an SF-50 

recording the appellant’s removal, but neither party disputes that USCCR 

complied with OPM’s instruction. 

¶3 The appellant filed an appeal with the Board, contesting OPM’s suitability 

action and raising affirmative defenses of harmful error and discrimination based 

on race and national origin. IAF, Tab 1. 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 9. Following a hearing, the administrative judge sustained 

the charge, found the appellant’s affirmative defenses unproven, and affirmed the 

suitability decision. IAF, Tab 13. 

ANALYSIS

¶4 We reopen this case to address the question, not raised below or on petition 

for review, of whether the appellant is entitled to appeal his removal to the Board 

as an adverse action under 5 U.S.C. chapter 75, subchapter II. At the time of his 

removal, the appellant occupied a competitive service position and had completed 
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his 1-year probationary period. See IAF, Tab 4(2qq). He therefore satisfies the 

definition of an “employee” at 5 U.S.C. § 7511(a)(1)(A). Furthermore, with 

certain exceptions not applicable here, a removal falls within the scope of 

5 U.S.C. chapter 75, subchapter II. See 5 U.S.C. § 7512. Under regulations 

prescribed by OPM, an agency may take an action covered by that subchapter 

against an employee only for such cause as will promote the efficiency of the 

service. 5 U.S.C. § 7513(a). An employee against whom such an action is taken 

is entitled to certain procedural protections, listed at § 7513(b), and is also 

entitled to appeal the action to the Board. 5 U.S.C. § 7513(d). Consequently, it 

appears the appellant in this case may have a statutory right to appeal his 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 731.2

 

¶5 The distinction is not merely academic. Our jurisdiction over adverse 

actions under 5 U.S.C. chapter 75, subchapter II includes the authority to mitigate 

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

In addition, the respondent in an adverse action appeal would not be OPM, but 

rather USCCR, as it was the latter agency that effected the removal action, even 

 

2

 In the Federal Register notice announcing the June 16, 2008 revision of its suitability 

regulations, OPM contended that where there is a choice between taking an action under 

5 C.F.R. part 731 or another authority, the Board “cannot hold an agency to standards 

relating to a legal authority the agency did not invoke.” 73 Fed. Reg. 20149, 20153 

(Apr. 15, 2008). For the Board to do so, OPM argued, would be contrary to Lovshin v. 

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

475 U.S. 1111 (1986), in which our reviewing court held that an agency may rely on 

either 5 U.S.C. chapter 43 or chapter 75 to take a performance-based action. Id. at 843. 

Lovshin differs from this case, however, in that chapter 43 and chapter 75 procedures 

are, by statute, mutually exclusive, at least with respect to specific charges. See 

5 U.S.C. § 7512(D); Lovshin, 767 F.2d at 843 (agency may bring a mixed case, relying 

on chapter 43 for charge of unacceptable performance but also chapter 75 for 

alternative or additional charges). Thus, an agency may prevent the Board from 

applying chapter 75 standards by invoking chapter 43 as the sole authority for its 

performance-based action. By contrast, we are aware of 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. 
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if it did so at OPM’s direction. See 5 C.F.R. § 731.304 (“the employing agency 

must remove the appointee or employee from the rolls within 5 work days of 

receipt of OPM’s final decision.”). 

¶6 We note that under OPM’s current regulations governing suitability 

determinations and actions, a removal action may not be taken under both 

5 C.F.R. part 731 and part 752. See 5 C.F.R. § 731.204(f) (“[a]n action to remove 

an appointee or employee . . . under this part is not an action under part . . . 752 

of this chapter.”). An action under 5 U.S.C. chapter 75, subchapter II, is ipso 

facto an action under 5 C.F.R. part 752, which incorporates that subchapter in its 

entirety. See 5 C.F.R. § 752.301. Thus, if the appellant’s removal was an action 

under 5 U.S.C. chapter 75, subchapter II, OPM’s own regulations preclude it from 

being construed as a suitability action under 5 C.F.R. part 731, even though 

USCCR acted in compliance with an OPM directive issued under the purported 

authority of 5 C.F.R. § 731.304. Cf. Cruz-Packer v. Department of Homeland 

Security, 102 M.S.P.R. 64, ¶ 6 (2006) (5 C.F.R. § 731.105(b) did not serve as 

authority for removal of excepted service employee, notwithstanding agency’s 

characterization of the action as a “suitability determination.”). To the extent 

§ 731.204(f) may purport to carve out an exception to the Board’s statutory 

jurisdiction under 5 U.S.C. § 7513(d), the validity of the regulation is in doubt. 

Cf. DoPadre v. Office of Personnel Management, 69 M.S.P.R. 346, 351-52 (1996) 

(invalidating regulation intended to limit Board’s authority under 5 U.S.C. 

§ 8347(d)(1) to review OPM’s application of regulations governing court orders 

affecting retirement benefits); Cuellar v. U.S. Postal Service, 8 M.S.P.R. 624, 

632 (1981) (invalidating regulation allowing for emergency suspensions in 

situations not within the “crime exception” of 5 U.S.C. § 7513(b)). 

ORDER

¶7 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 his 
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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 his removal, with USCCR as the respondent agency. Should the 

administrative judge find that one or more of the suitability actions on appeal 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 the June 16, 

2008 revision of OPM’s suitability regulations may affect the scope of the 

Board’s review of those actions. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.