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Of Kir:K OF THF GENERAL COLINSEL 

UNTTFD STATES 

OFFICE OF PERSONNEL MANAGEMENT 

1900 H Street, NW. Suite 7353 

Washington, D.C. 2041,5-1300 

Phone (202) 606-1700 Fax (202) 606-0082 

FAX TRANSMITTAL 

T O: 

Office: 

Fhone: 

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FROM : 

Office: 

Phone: 

Fax: 

Honorable William D. Spencer, Clerk ofthe Board 

Merit Systems Protection Board 

(202) 653-7200 

(202) 653-7130 

Robert J. Girouard . 

Ollice ofthe General Counsel 

U.S: Office ofPersonnel Management 

(202)606-1700 

(202) 606-0082 

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September 22, 2010 

12 (including cover) 

The Office of Personnel Manaficxncnl (Agency) hereby respectfully submit.s its Supplemental 

Reply to the Response ol'Appellant llolley C. Barnes in the consolidated appeal of Atzuzic. et ^ 

y. OPM,-Mos. i:)C-0731-09-0261-R-l; DC-0731-09-0260-R-1, AT-0731-09-0240-I-1 and CH0731-09-0578-M. 
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UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

) 

Hygina^ U. Aguzie, Nol ley C. Barnes, ) Docket Nos. 

Jcncc Ella Hunt-O'Neal., and ) 

James A. Scott, ) DC-0731-09-026NR-1 

)DC-0731-09-0260-R-l 

Appellants, ) AT-0731-09-0240-1-1 

)CH-0731-09-0578-M 

V. ) 

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OtTicc ofPersonnel Management, ) 

) SEP n 2Q;a 

Agency. ) 

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OFFICE OF PERSONNET.. MANAGEMENT'S SUPPLEMENTAL REPLY 

TO I HE RESPONSE OF APPELLANT HOLLEY C. BARNES 

On August 9, 2010, the Merit Systems Protection Board (Board) issued orders to pro bono 

counsel for two of the Appellants in this consolidated appeal, Holley C. Bame.s and Jenee Ella HuntO'Neal, giving them the opportunity lo file response briefs, with an opportunity for the Office of 

Personnel Management (OPM; Agency) to file supplemental replies. Appellants Barnes and HuntO'Neal filed their response briefs on August 31, 2010. OPM hereby replies to Appellant Barnes' 

response brief' 

ARGUMENT 

The Appellant was removed from her job on the basis of OPM's detcrminaiion that she wai; not 

suitable for federal employment under the criteria set forth at 5 CF.R. Part 731. A^-. we have described 

in our prior briefs, Part 731 was promulgated consistent with OPM's rule making authority ihat predates the Civil Service Reform Act (CSRA). As we have also shown, when Congress enacted the 

OPM replies to /i.ppellant Hunt-O'Neal's response in a separate brief. 
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CSRA, il expressly ratified and preserved the existing civil service lules, which include.the rules 

governing suitability. 

Under OPM's rules governing suitability actions, employees possess a right of review before 

the MSPB that is very s.'.milar to the right of MSPB review that is provided to employees who have been 

removed pursuant to Chapter 75. The primary difference between the rights afforded is that the Board 

may nol "mitigate" a removal that is directed by OPM based on its determination that an individual is 

not suitable for federal employment as it can a removal action initiated by an agency under Chapter 75. 

In deciding whether to uphold an unfavorable suitability determination the Board may, howevcrj look al 

factors that are similar to those it considers when deciding whether a penalty should be mitigated under 

Chapter 75. In the suitability context, the Board may review these additional considerations in deciding 

whether OPM has proved the merits ofthe suitability determination. . 

This distinction stems from the fundamentally different character of an OPM initiated 

suitability action against an employee as compared to a Chapter 75 adverse action taking by an 

employing agency. The former by definition involves a determination that an individual is disqualified 

generally from continuing lo hold a federal job because of particular types of misconduct that are 

considered to go to the heart ofthe civil sei-vice examination process (material, intentional false 

statements, deception or fraud in examination or appointment; refusal to fumi.sh testimony as required • 

by Civil Service Rule 5.4; or a statutory or regulatory bar which prevents the person's lawful 

employment), 'fhc concept of "mitigation,'' which allows the.Board to review whether a penalty 

decision is within the bounds of reasonableness and adjust it accordingly, is simply inapposite; if an 

individual is not suitable (that is, disqualilied from) federal employment, removal must be pan ofthe 

outcome, simply as a matter of logic. 
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The distinctions between unfavorable suitabihty determinations and Chapte]' 75 adverse actions 

are made explicit by OPM's regulations (wliich are entitled to substantial deference) and by the MSPB's 

own regulations. The distinctions have been applied in a long line of heretofore unquestioned Board and 

Federa] Circuit precedent. The Appellant has failed to provide the Board with a persuasivt justification 

for rejecting OPM's interpretation ofthe statute or departing from this well established practice and 

precedent. 

A. The Appellant^s "Plain Language" Argument is Without Merit. 

The Appellant argues at some length lhat she fits under the definition of "employee" set forth 

in 5 U.S.C. Chapter 75. (Barnes Res. Br. 5-6, Aug. 31, 20l0, citing 5 U.S.C. § 751(a)(1)(A).) She 

points out that 5 U.S-C. Chapter 75 expressly "applies lo removals" and argues thai a suiiability removal 

directed by OPM must be an adverse action subject to Chapter 75, since it "is not among the listed 

statutory exception.s." (Id, 7-8, citing 5 U.S.C. § 7512.). Claiming that the "plain language" of Chapter 

75 covers an OPM ordered suitability removal, she (and her amici) argue that OPM's regulations arc not 

entitled to deference. Z^'. 4; .vee al.sv NTEU Amicus Br. 3-5, June 3, 2010; AFOE Amicus Br. 5-8, June 7, 

2010. 

The Appellanfs ''plain language" argument is overly simplistic and ignores the overall' •. 

Statutory structure, its historical context, and the critical di.stinctions between the interests served by 

agency initiated adverse aclions and OPM initiated suitability actions. Thus, OPM acknowledges that , 

the Appellant meets the definition of "employee" under Chapter 75, and that she ha.^'. been removed from 

her Job. But what ihc Appellant glosses over is that Chapter 75 prescribes procedures for '"sn agency'' to 

take an action again.st one of its own employees "for such cau.se as will promote the eHiciency ofthe 

service:' subject to OPM's regulations. 5 U.S.C, § 7513(a). Further, the procedural rights afforded by . 

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section 7513, including the right of appeal to the MSPB contained at section 7513(d) are expressly made 

applicable only to *'an employee against whom an action is taken under ihis sectioK\'^ (Eraphasis 

supplied.) The action taken against the Appellant wa.s not "taken under" Chapter 75 because it was not 

taken by her employer at Its own initiative for such cause as will promote the efficiency of the service; il 

was directed by OPM and taken pursuant to 5 CFR Part 73 L Subpart C, based on the speci fic standards 

sei forth under that regulatory scheme. 

'fhus, the structure and text of Section 7513 make it obvious that it was inlended to establi.sh 

employees' procedural lights in the context of actions initiated by their employliig agencies, not OPM 

directed actions. Section 7513(b) provides employees with a right to a written notice of reasons for the 

proposed action from ''the agency" (not from OPM), lo a reasonable time to answer this employing 

agency siaiement of reasons orally and in writing, and to a written decision by the employing agency 

conceming the proposed removal.-

It is inconceivable that Congress intended to subject suitability detenninalions made by OPM 

lo this process, which was clearly designed to allow an employee to secure reconsideration of a decision 

made by his or her employing agency. The underlying reviewable decision in a suitability dcierminalion 

is made by OPM, not ar. employing agency. The employing agency exercises no management 

discretion in removing the employee and therefore cannot reverse the unfavorable suitabilily 

dcierminalion as a consequence of an employee's written or oral response. In fact, the employing 

agency's interests may not be aligned with those of OPM. That is why Civil Service Rule V gives the 

employing agency as well as the employee the right to "appcal[J the Director's linding that a .separation 

or other action is necessary/' .s-ee 5 C.F.R. § 5.3(a)(1), a right thai OPM has provided in its implementing 

regulation. See 5 CF.R. § 731.303(b) (Agency's right to answer OPM's charges). Further, an employer 

may be sanctioned if it fails to remove the employee as ordered. Civil Service Rule V 5 CF.R. 
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§ 5.4(c). The fact that Chapter 75 lisis a "removal" as a covered aciion does not, therefore, compel the 

conclusion appellant .seeks. Cf. Horner v. Andrzje.w.ski^ 811 F:2d 571, 575 (Fed. Cir. 1987) (holding 

that although Chapter 75 expressly applies to furloughs, an emergency furlough is not an action taken 

under Chapter 75 because the agency has no choice not to order the furlough; "[i]f an . .. [otherwise 

covered] action is taken because an agency has no choice, . .,. it can reasonably be said that the agency 

did not 'take an action' -covered by chapter 75"). The fact that Chapter 75 lists a ''removal" as a covered 

action does not, therefore, compel the conclusion the Appellant seeks. 

Further, the Appellant's "plain language" argument is implausible because substituting the 

employing agency for OPM in defending a, suitabilily determination undermines the role that OPM plays 

in protectingthe integrhy ofthe cxamination.process and~of the civil service generally when it makes 

suitability determinations. An OPM.determination that an cmploycc is noi suitable for federal • 

crnpioymcnl involvesa broader set of'interests than those, an individuals employing agency possesses. 

OPM's determination can result.in-,a government-wide debarment-.of an individual fVom federal, 

eniployirient, a remedy that an individual agency lacks the authority or the expertise to order. In 

making suitability determinations, OPM is acting its role as guardian of the examination process and of 

the merit based civil service; it is OPM that must prosecute such cases before the MSPB, to protect those 

broader intcrests. As noted in OPM's briefs in this consolidated,appeal, both Congress and iJie President 

hav.c conferred this.responsibility on OPM. • ri.^ -. , -r.-. -.. 

Finally, the Appcllant's-rcHance on the exceptions clause contained at 5 U.S.C § 7512 is 

unavailing. The exceptions clause, lists fivetypes of .actions that aresubjeci lo other statutoiy 

procedures. Its purpose was to rec.oncilc these other podified provisions of the Act with Chapter 75 . 

(5c'c- Discussion in Agency Reply Br, at J 0-11 & n.7.) Given this purpose (as well as the savings 
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provisions of the CSRA), nothing can be read into its failure to explicitly exclude directed removals 

under pre-existing civil service rules from the coverage of Chapter 75. ^ 

In short, there is no merit to the Appellant's "plain language" argument (or that of tlic amici). 

Instead, as OPM argued in its opening and reply briefs, the language and history of the CSRA confu-m 

that the process Congress set up in the CSRA for adjudicating adverse actions that agencies take against 

their own employees was not intended to supplant the procedures set forth in Executive order and in 

OPM's regulations ibr .securing review of suitability determinations made by OPM To the contrary, as 

is also explained in detail in our previous briefs. Congress expressly stated that it intended to preserve 

existing civil service rules, including those governing OPM initiated suitability determinations ^'except 

as otherwise provided in the Act.". CSRA,.§,904, 5 U.S.C. §1101 note. The Act does not provide an 

alternative procedure for the rcvicw.of suitabilily determinations. OPM's.regulations.are entitled to 

dQfQtQncc m^or Cheyr()n,^^^^^ Def CouncilA^7-U.S. 837 (1984). .;nTie Board, 

accordingly,.shou]d decline.ihe AppelJant's invitation to depart lrom decades of setlled law and practice, 

and to invalidate both its own and OPM's regulations governing suitability determinations. . . 

B» OPM's Authority to Promulj^atc the Suitability Regulations Is Firmly Gniundcd m 

Statute. 

In addition to its "plain language" argument, the Appellant argues more generally that OPM's 

suitabihty regulations, in authorizing actions,against tenured employees, exceed the authority delegated 

to OPM under 5, U.S.C. § 3301 to. rcgiilaie ''admission . ... intothe civil service" and to "ascertam the 

fitness of :applicanis.''(BLunes Res. Br;;9-12.) . . . 

Fir.^t, 5 U.S.C § .3301- i.s not the;Soic statutory authority for OPM's suitability regulations. As 

slated in the authority citation for 5 C.F.R. Part 731, the regulations are also authorized by a delegation 
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under 5 U.S.C § 7301, authorizing the President to "prescribe regulations for the conduct cf employees 

in the executive branch," and 5 U.S.C. § 1302, authorizing OPM, subjcet to the Civil Service Rules, to 

"prescribe regulations Ibr, control, [and] supervise ,- . . examinations for the competitive service," 

(Agency Opening Br, 9 & n. 3,11-12.) Consistent with these provisions, OPM has the authority lo lake 

a suitability action after the first year of employment, although OPM's jurisdiction to do so is 

circumscribed, and is limited to three circumstances that go to the heart of the Civil Service examining 

system. (Agency Reply Br. 3 n. 3.) 

The Appellant argues that OPM likewise cannot rely on Executive Order 10577, as amended, as 

the.source of its authority, tpregulate.suitahilityiactions,.ag^^ removals,, 

under mle V of E-Q. 10577, in the>face:0f later-enacted conllicting.prpv^ GSRA.. (Barnes, 

Res. Br.-13.) The Appellant's argument is^unavaihng because the.CSRA itself-resei^edthe President's 

existing a^uthorities and delegations:of authority.under Executive order"[c]xccpt as otherwise expresslyprovided in".the CSRA [emphasis suppliedl.; CSRA, § 904, 5, U.S.C § 11,01 note; .yee also CSRA 

§.902(a), 5 U.S.C § 1101 note, discussed infra. The CSRA:is not a later-enacted statute in conflict with 

E.O.-10577, since the CSK A itself ratified E.O. 10577 and the delegations made thereunder, and 

effectednocxpressamendment .or revocationof anyof itsprpyi.sions.^ . ; r:_ . . .,-. 

^ Moreover, as OPM argued;in greater detail in its, previous briefs, even if Congress had not plainly 

signaled, in CSRA 902(a) and 904, its intent to reserve distinct suitability actions and procedures, 

(Congress' intent to do so rnust be''presumed. Lackhouse v: Merit Sys. Prot. Bd., 773 F.2d '313, 316 & n. 

6, 317 (Fed. Cir. 1985); Loyshin v. Dep'i of the Navy, 767 F.2d 826, 840, 842 (Fed. Cir. 19$;5). 

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C. The "Unified Penalty" Principle is Inapplicable to Suitability Actions. 

The Appellant finally argues that if the Board has jurisdiction over a suitability removal as an 

adverse action under 5 U.SC Chapter 75, the Board also has adver.se action jurisdiction over olher 

suitability actions taken against the employee, such as debarment or cancellation of ehgibilities, under 

the "unified penalty" principle. (Barnes Res. Br. 14-15, citing Brewer v. Am. Battle Monuments 

Common, .779 F.2d 663, 664-5 (Fed. Cir. 1985); Campbell v. Dep't of Veterans Affairs, 93 M.S.P.R. 70, 

73 (2002).) 

Jhe "unified penalty'^? principle allows :the. Bo or iDther adverse 

aciion laken under Chapter 75 has had conditions placed upon it, such as an accompanying 

reassignment, that make the adverse action "excessive or unreasonable" in .the circumstances, and 

therefore subject to mitigatipn. See-Brewer; 779. F.2d al 665. Even.if thcBoard could revie\y a directed 

removal under adverse action procedures,, the Board could not. review a debarment or a cancellation of 

cligibililieS:.as part of a,''unified penalty."- Dcbarmcilt and .cancellation of eligibilities are-actions made 

expressly distinct from the directed removal by regulation,.and-they serye-to prospectively regulate Ihe 

conducf of and admission irlto examinations, not to place conditions on a directed removal. OS'ce Agency 

Opening-Br. 26; SU.S.Cirg .13q2(a);;Civ.ilS,ervicc R^^^^ 5 CF.K. §§ 731.203(a)(1), 

(a)(3), (a)(4).) ^ • ... . . -,. 

CONCLUSION • -

,, .For the foregoing reasons, and cheiTeasons stated in the Agency's prior submissions in tills appeal, 

the Appellant was entitled to appeal her removaLonly under 5:,CF.R. Part 731 ,• not under 5 U.S.C 

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§ 7513(d). Because the Board has already found that the Appellant's petition fails to meet the Board's 

criteria for review, 112 IVt.S-P.R, 273, 274 (2009), and because the Board must resolve the additional 

questions presented in OPM's favor, the Board should issue a final order informing the Apj^ellant of her 

right to judicial review. 

Respectfully submitted. 

Elaine Kaplan 

General Counsel 

y1 

-SlevenrE. Abow 

Assistant General Counsel 

for Merit Systems and Accountability 

Darlene M. CanAgency Representative 

Office ofthe General Couns'el 

Robert J. Girouard 

Agency Representative . 

Office ofthe General Counsel 

Enclosure: certificate of service 

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