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U.S. OFFICE OF PERSONNEL MANAGEMENT

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COMMENTS:
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Hyginus U. Aguzie, Holley C. Barnes, ) Docket Nos.

Jenee Ella Hunt-O'Neal, and

James A. Scott,

Appellants,

v.

Office of Personnel Management,

Agency.

} DC-0731-09-0261-R-1

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

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

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

)

i FEB 4 2010

REPLY BRIEF FOR THE OFFICE OF PERSONNEL MANAGEMENT

Introduction

On January 14, 2010, the Merit Systems Protection

Board (MSPB; the Board) granted the Office of Personnel

Management's (OPM's; the Agency's) request for leave to

file a reply to Appellant Hyginus U. Aguzie's January 4,

2010 response brief and Appellant James A. Scott's January

5, 2010 response brief in the above-captioned consolidated

appeal.1 Appellant Aguzie and Appellant Scott responded to

OPM's December 7,, 2009 opening brief on the questions

presented in the consolidated appeal, namely:

1. Whether the appellant is entitled to invoke the

adverse action procedures of 5 U.S.C, § 7513(d)

1 Appellants Holley C. Barnes and Jenee Ella Hunt-O'Neal

did not file responsive briefs.
to appeal his or her removal, notwithstanding

that the removal was ordered by 0PM pursuant to

its suitability regulations at 5 C.F.R. Part

731f and if so,

2, Whether review of 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.

Aguzie v. Office of Pers. Mgmt., 112 M.S.P.R. 276, 279

(2009); Barnes v. Office of Pers. Mgmt., 112 M.S.P.R. 273,

275 (2009).

In his response brief, Appellant Scott also addressed

unrelated matters, namely, his continuing opposition to

consolidation of the appeal, and the merits of his petition

for review. (Scott Res. Br. 1-8, Jan. 5, 2010,)

Consolidation was appropriate, since the threshold

questions of law presented in the Aguzie appeal are

unavoidable in the Scott appeal, (See Agency Mot. for an

Extension of Time to File a Resp. to the Pet. for Review, &

Statement of Good Cause 5, paras. 3-5, Oct. 15, 2009).

Further, with respect to Appellant Scott's petition for

review, the Agency stated in its opening brief that "after

the Board resolves the two questions presented [by the

consolidated appeal], it should order additional briefing
to allow 0PM to address [Appellant's] petition[] for review

on the merits." (Agency Opening Br. 6 n.2, Dec. 7, 2009.)2

This reply brief is therefore limited to the questions

presented, infra, in the Aguzie appeal.3

2 The Agency contends that Appellant Scott's petition is

not ripe for review on the merits until the threshold issue

presented in Aguzie is resolved. If the Board does choose

to consider Appellant Scott's petition for review without

further briefing, however, it should deny the petition for

failing to meet the criteria for review in 5 C.F.R.

§ 1201,115(d) or, in the alternative, should affirm the

presiding administrative judge's thorough and well-reasoned

initial decision, '

3 In limiting itself to the questions presented, the

Agency also declines to respond to Appellant Aguzie's

argument that suitability actions should be limited to the

first year of Federal employment as a matter of equity and

efficiency, as this is essentially a policy argument,

rather than a legal one. (See Aguzie Res. Br. 15-21.) In

any event, his policy argument is not well taken because,

in fact, OPM's regulations already limit the circumstances

under which suitability actions may occur after the first

year of Federal employment. Under 5 C.F.R. §§ 731.105(d)

and 731.203(d), OPM may take a suitability action against

an employee who has completed the first year of appointment

in only three circumstances that go to the heart' of the

Civil Service examining and staffing system: 1) material,

intentional false statement, or deception or fraud in

examination or appointment; 2} refusal to furnish testimony

as required under Civil Service Rule V; or 3) a statutory

or regulatory bar preventing employment in the position.

See Kissner v. Office of Personnel Management, 792 F.2d

133, 134 (Fed, Cir. 1986) (an employee's falsification of

his or her employment - documents does not disappear as a

basis for a suitability action during subsequent Federal

employment).
ARGUMENT

A. The Appellants Fail to Establish that OEM's

Suitability Removal Authority is Contrary to

Statute; Instead, the Appellants Provide

Additional Legal Support for the Argument that

the Civil Service Reform Act of 1978 Expressly

Reserved OEM's Existing Authority to Take

Suitability Removal Actions Independent of 5

U.S.C. Chapter 75

Appellant Aguzie argues that "[s]ince Congress did not

exclude suitability determinations from" the Civil Service

Reform Act of 1978 (CSRA), "it follows that OPM's

suitability determinations are subject to the [CSRA],

including Chapter 75 of Title 5 of the U.S. Code*" (Aguzie

Res. Br. 6, Jan. 4, 2010). Yet as the Agency argued in its

opening brief,- OPM's authority to take suitability actions

derives from Civil Service Rule V of Executive Order (E.G.)

10577, as amended, which the President issued pursuant to

applicable statutory authority, see 5 U.S.C. SS 3301, 3302,

and 7301; and which OPM implemented pursuant to Executive

Order and its own statutory rulemaking and enforcement

authority. (Agency Opening Br- 9-12.) Further, in passing

the CSRA Congress ratified Civil Service Rule V by

requiring OPM to "execut[e], administer[], and enforc[e]"

the Civil Service rules, including Rule V; "to prescribe

regulations and to ensure compliance with" the Rules/ and
to regulate and control competitive examinations "subject

to" the Rules. (Id. 17-18, quoting the CSRA, §§ 201 (a) and

906<a](2), 92 Stat- 1111, 1119, 1121, 1224, codified, in

relevant part, at 5 U.S.C. §§ 1103(a) (5), 1104(b)(3),

1302(a)).

In support of his argument, Appellant Aguzie submits

that E.G. 12107, reprinted as amended in 5 U.S.C. § H0lf

which conferred upon 0PM the authority formerly exercised

by the Civil Service Commission to take suitability actions

under rule V, also provided, in section 2-402, that the

Order would continue in effect only "until modified,

terminated, or suspended," "in accord with section 902(a)

of" the CSRA. (Aguzie Res. Br, 7 n.3.) The Appellant

misconstrues this as a sunset provision when it is in fact

a savings provision.

Section 902(a) of the CSRA, titled "Savings

Provisions," provided in relevant part that "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] the Office of Personnel Management. . . ."

92 Stat. 1223, 5 U.S.C. § 1101 note. Thus, section 902(a)

of the CSRA had the effect of reserving- the existing

suitability program until such time as the President chose
to amend Civil Service Rule V or 0PM chose to amend its

regulations.4

Structurally, section 902(a) of the CSRA, which

reserved the Civil Service Rules and regulations,

complemented sections 201(a) and 906(a)(2) of the CSRA

which, as previously noted, required 0PM to execute,

administer, and enforce the Rules and to promulgate

regulations consistent with the Rules.5 It also

complemented section 904 of the CSRA, 92 Stat. 1224, 5

U.S.C. § 1101 note, titled "Powers of the President

Unaffected Except by Express Provisions," which reserved

the President's existing authorities and delegations

4 As applicable here, section 902 (a) of the CSRA

reserved the following regulations: 5 C.F.R. Part 731,

Suitability, §§ 731.201, 731.302(b), (c) (1978) (governing

the Commission's jurisdiction to direct suitability

removals under Part 754, and distinguishing such removals

from actions "initiated by an agency" under Part 752); 5

C-F.R. Part 752, Adverse Actions by Agencies,

§ 752.103(b)!(2) (1978) (excluding, from the definition of

such adverse actions,

 w[ajn action taken by an agency

pursuant to instructions from the Commission"); and 5

C.F.R. Part 754, Adverse Actions by the Commission,

§ 754.101(a) (1978) (establishing the1 procedures to be

followed when the Commission directed the removal of an

employee under 5 C.F.R. § 5.4 or 731.302(b)J.

5 The Appellant also cites E.O- 12107's reference to 5

U.S.C. § 7135(b). (Aguzie Res. Br. 7 n.3.) This is a

savings provision for pre-CSRA labor-management relations

policies, regulations, .and procedures with no relevance to

this appeal.
"(e]xcept as otherwise expressly provided in" the CSRA

(emphasis supplied) ,.

6

In further support of his argument, Appellant Aguzie

argues that "if Congress had intended to exclude OPM's

suitability decisions from [the CSRA's adverse action

provisions] it would have so stated . . . ." (Aguzie Res.

Br. 6.) Yet as OPM noted in its opening brief, the

->

applicable principle of statutory interpretation, set forth

by the Federal Circuit in Lackhouse v. Merit Systems

Protection Board, points in the opposite direction:

Congress is presumed to be aware of the Civil Service Rules

in enacting statutes and, if.it intends to amend or repeal

s

a Rule, will so indicate. Lackhouse, 773 F.2d 313, 316

n.6, 317 (Fed. Cir. 1985). Appellant Aguzie's attempt to

distinguish Ladchouse on grounds that Civil Service Rule V

"facially conflict[s]" with 5 U.S.C. chapter 75 is

unavailing, for as 0PM argued in its opening brief, OPM's

authority to initiate suitability removals as a regulatory

enforcement function is grounded in statute, and does not

I

conflict with employing agencies' separate authority to

6 As applicable here, section 904 of the CSRA reserved

the President's authority to direct the removal of an

employee on grounds of suitability, and his delegation of

that authority to the. Commission in Rule v of E.O. 10577,

as amended.
initiate adverse action removals as a management function.

(Aguzie Res. Br. 12; Agency Opening Br. 7-8, 17-19, 23-25.)

B. The Appellants Fail to Establish that in Passing

the CSRA, Congress Implicitly Intended for

Suitability Appeals to be Adjudicated as Adverse

Actions Under 5 U.S.C. Chapter 75

Appellant Aguzie argues that Congress intended 5

U.S-C. Chapter 75 to comprehensively address the rights of

permanent Federal employees facing.removal, and that "0PM

is attempting to 'carve out1 an exception to" those

statutory rights. (Aguzie Res. Br. 9-10.) In support of

his argument he quotes Lovshin v. Department of the Wavy,

where the Federal Circuit noted that "'Chapter 75 was

revised to spell out with greater particularity the

procedural rights of employees when action is taken

thereunder1" including "'minimum rights - . . set out in

§ 7513 (b).'11 (Aguzie Res. Br. 12-13, quoting Lovskln, 767

F.2d 826, 834-35 (Fed. Cir. 1985)). He further argues that

Lovshin stands for the proposition that "an employee's

'substantive rights1 under the civil service laws may not

be abridged by an agency's use of different rules and

procedures regarding discipline." (Aguzie Res. Br. 13,

citing and quoting 767 F.2d at 841-42.)
The appellant's first point begs the question, as a

suitability removal action is not an action taken "under"

Chapter 75; rather, it is taken under Civil Service Rule V

and 5 C.F.R. Part 731. (Agency Opening Br., passim.) The

appellant's second point similarly begs the question

because suitability actions are not "disciplinary" actions.

In any event, and more to the point, the Lav-shin Court did

not say in the text cited by the appellant that "an

employee's 'substantive rights' under the civil service

laws may not be abridged by an agency's use of different

rules and procedures regarding discipline." Instead, the

Court stated that pursuant to 5 U.S.C. §.7701(c)(2)(B), an

employee may, in appealing a personnel action to the Board,,

raise an affirmative defense that the agency engaged in a

prohibited personnel practice, to protect his "substantive

rights" under 5 U.S.C. chapter 23. Lovshin, 767 F.2d at

841-42. It is undisputed that an affirmative defense may

be raised in any M'SPB appeal, including an appeal of £

suitability action, so it is unclear what point the

appellant is trying to make here. See 5 U.S.C. § 7701(aJ

(giving the Board appellate jurisdiction over "any action

which is appealable to the Board under any law, rule, or

regulation") and § 7701(c) (2) (providing that in any such
appeal, "the agency's decision may not be -sustained" if the

employee succeeds in his affirmative defense); 5 C.E\R.

"S 731-501(a) (making suitability actions appealable to the

Board, and therefore subject to affirmative defenses).

In further support of his argument that Congress

intended 5 U.S.C. Chapter 75 to comprehensively address the

rights of permanent Federal employees facing removal,

Appellant Aguzie argues that "chapter 43 and chapter 75

procedures are, by statute, mutually exclusive. ... By

contrast, 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." (Aguzie Res. Br, 14-15, citing 110 M.S.P.R. at

278 n.2 (citing 5 U.S.C. § 7512).) Section 7512 of Title 5

enumerates certain actions that are excluded from the

definition of an "adverse action," including, in paragraph

(D), a performance-based removal under 5 U.S.C, § 4303.

Yet there is no indication that the list in S 7512 is

intended to be exhaustive, with everything not specifically

enumerated constituting an "adverse action." As a matter

of statutory interpretation,

 M[n]ot every silence is

pregnant. ... In some cases. Congress intends silence to

rule out a particular statutory application, while in

others Congress1 silence signifies merely an expectation

10
that nothing more need be said in order to effectuate the

relevant legislative objective. An inference drawn from

/

congressional silence certainly cannot be credited when it

is contrary to all other textual and contextual evidence of

congressional intent." Burns v. United States, 501 U.S.

129, 136 £1991) (internal citations and quotations

omitted).

As noted infra, the context of section 204(a) of the

CSRA, by which 5 U.S.C. § 7512 was enacted, included: 1}

section 904 of the CSRA, which reserved the President's

authorities and delegations; 2) section 902(a) of the CSRA,

which reserved the existing Civil Service Rules and

regulations governing suitability removals; and 3) sections

201(a) and 906(a)(2) of the CSRA, which required 0PM to

execute/ administer, and enforce those Rules and to

promulgate regulations consistent with them. Further, the

history of the statute shows that there was a legislative

purpose in specifically excluding certain actions, such as

Chapter 43 performance actions, from the Chapter 75

definition of an adverse action. Prior to the enactment of

the CSRA, agencies were required to take performance

actions under Chapter 75, a requirement that the CSRA

eliminated. See Lovshin, 7S7 F.2d at 630-31; See also S.

Rep. No. 95-969 (1978), at 39-40, as reprinted in 1978

11
U.S.C.C.A.N. 2723, 2761-62. Nothing needed to be said

about the existing suitability program to meet the

legislative objective of distinguishing the new performance

actions established by the CSRA from adverse actions,

because the suitability program was already distinct.

More broadly, the exceptions in section 7512 served to

w.conform[] this section to other provisions in title V"

governing removals. S. Rep. No. 95-969, at 50, as

reprinted in 1978 U.S.C.C.A.N. at 2772. It was unnecessary

to list suitability removals to effectuate this legislative

objective, because the suitability removal authority was

reserved by uncodified provisions of the CSRA, not by

codified provisions requiring conforming language."7

In 5 U.S.C. §§ 7513(a) and 7514, Congress gave 0PM the

authority to interpret any ambiguity in § 7512's coverage,

and 0PM's reasonable interpretive regulations are entitled

to deference. (See Agency Opening Br. 16, citing Chevron

1 Foreclosing OPM-initiated suitability actions would

appear to be unnecessary for achieving the CSRA's

overarching goal of empowering agencies to take actions

against unsatisfactory employees without unnecessary

delays. See, e.g., S. Rep. No. 95-969, at 3-4, 9-10, 40,

as reprinted in 1978 U.S.C.C.A.N: at 2725-26, 2731-32,

2762, 2773; H.R. Rep. No. 95-1403, at 2, 4, 7 (1978), and

President's March 2, 1978 Message to Congress therein, as

reprinted in Staff of H, Conun. on Post office & Civil

Service, 96th Cong., Legislative History of the Civil

Service Reform Act of 1978, at 636, 639, 641, 644 (Comm.

Print 1979).

12
'U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 937

(1984).) If there is any doubt about whether a suitability

action is an "adverse action" under 5 U.S.C. § 7512, it is

resolved by 0PM1s interpretive regulations at 5 C.F.R.

§ 752.4Ql(b)(10), which exclude a suitability action taken

under 5 C.F.R. Part 731 from Chapter 75's definition of an

adverse action. (Agency Opening Br. 14-15.)8

C. The Appellants Fail to Establish that the Board's

and the Federal Circuit'a Case Law Recognize

Suitability Removals as Adverse Actions

Appellant Aguzie argues that "in many cases involving

permanent Federal employees, suitability removals are

processed under 5 C.F.R. part 752 and include consideration

of the Douglas factors." (Aguzie Res, Br. 12.) In

support, he cites Kissner v. Office of Personnel Management

as having applied the Douglas factors applicable to Chapter

75 removals in reviewing the Agency's suitability action.

(Id. 11-12, citing Kissner, 792 F..2d 133, 134-35 (Fed. Cir.

1986).)

0 The Agency's suitability regulations, likewise,

exclude a suitability action from the' definition of an

adverse action, and the Board's own jurisdictional

regulations treat an adverse action under Chapter 75 and a

suitability action under 5 C.F.R. Part 731 as.distinct

appealable actions. (See Agency Opening Br. 14-15, 16 &

n.6, citing 5 C.F.R. §§ 731.203(f), 1201-3(a)(2),

1201.3(a)(7).)

13
These arguments are unavailing, for when the Board had

this question squarely before it, the Board concluded, as

the discussion below will demonstrate, that it had no basis

to attempt to "mitigate" the suitability actions that

resulted from the determinations of unsuitability the Board

was reviewing. See Shelton v. Office of Personnel

Management, 42 M.S.P.R. 214, 221 (1969), aff'd, 904 F.2d 46

(1990) (table). This holding was reaffirmed by the Federal

Circuit's decision, in Folio v. Department of Homeland

Security, that the Board's jurisdiction to review

suitability determinations is limited by OPM regulation and

does not include the authority to review the suitability

action taken. 402 F.3d 1350, 1355 (Fed. Cir. 2005).

Consistent with Folio, the Board has recognized that it has

no jurisdiction to review the appropriateness of a

suitability action, and that if fewer than all the charges

are sustained, the Board must remand the case to OPM for a

determination of the appropriateness of the action. Doerr

v. Office Qf Pezs. Mgmt., 104 M.S.P.R. 196, 202 (2006);

Sosa v. Office of Pers. Mgmt., 101 M.S.P.R. 583, 565

(2006) .

The Agency is unaware of any case in which the Board

or the Federal Circuit has reviewed a suitability removal

as an adverse action under Chapter 75. The Agency

• I

14
previously noted that the Board and the Federal Circuit

have only cited 5 C.F.R. Part 731., not Part 752, as the

regulation governing the Agency's action or the Board's

appellate jurisdiction in suitability removal appeals.

(See Agency Opening Br. 16-17, citing Doerr v. Office of

Pers. Mgmt., 104 M.S.P.R, 196 (2006); So$a v. Office of

Pers, Mgmt., 101 M.S.P.R. 583 (2006); McCiain v. Office of

Pers. Mgmt., 76 M.S.P.R. 230 (1997); Kissner v. Office of

Pers. Mgmt., 792 F.2d 133 (Fed. Cir. 1986); Shelton v.

Office of Pers. Mgmt., 42 M.S.P.R. 214, 221 (1989), aff'd,

904 F.2d,46 (Fed. Cir. 1990) (table).)9

To be sure, the Federal Circuit in Kissnsr, and the

Board in three of the other early cases, Swift,

Morderosian, and McCreary, appeared to assume that Douglas

factor balancing was applicable to Part 731 actions,

without suggesting that a Part 731 action could be

adjudicated under Chapter 75. See Kissner, F.2d at 134-35

(finding that the petitioner failed to establish his

9 See also Reed v. Office of Pers. Mgmt,, 74 M.S.P.R.

616 (1997); Swift v. Office of Pers. Mgmt., 48 M.S.P.R. 441

(1991); Morderosian v. Office of Pers. Mgmt.t 42 M.S.P.R.

371 (1989); Logan v. Office of Pers. Mgmt., 38 M.S.P.R. 615

(1988); DeAngelis v. Office of Pers- Mgmt., 28 M.S.P.R. 456

(1995); Kissner, 28 M.S.P.R. 392 (1985) (also citing OPM's

former suitability regulation in Part 754), aff'd, 792 F.2d

133; McCreary v. Office of Pers. Mgmt., 27 M.S.P.R. 459

(1985).

15
potential for rehabilitation); Swift, 48 M.S.P.R. at 446,-

and McCreary, 27 M.S.P.R. at 462 (finding that the

administrative judge appropriately considered mitigating

factors in reviewing the appropriateness of the suitability

action); Morderos±afif 42 M.S.P.R. at 374-75 (finding that

the administrative judge appropriately applied aggravating

factors in reviewing the appropriateness of the suitability

action). Yet when the issue was directly presented, as

noted.above, the Board stated that it had no basis in case

law to engage in Douglas balancing, in reviewing an action

under Part 731. .

In Shelton v. Office of Personnel Management, for

example, in a non-precedential decision, a Federal Circuit

panel remanded a suitability removal to the Board and

.ordered it to mitigate the action. Shelton, 809 F.2d 787

(Fed. Cir. 1986) (table) (affirming in part, reversing in

part, and remanding 28 M.S.P.R. 389 (1985)). On remand,

the Board mitigated the removal to a suspension, but did so

only "[i]n compliance with the Court's unpublished remand

decision," stating that the Board's Opinion and Order,

"like the court's unpublished opinion, is limited to the

specific circumstances of this case, and will not be

considered precedential or binding in future cases." 34

M.S.P.R. 356 (1987) (NP) . f.

i

16
In a precedential decision reviewing appellant .

Shelton's request for attorney fees, however, the Board

then noted that it

 x>has no precedent for applying the

Douglas case to mitigate an 0PM action under 5 C.F-R- part

731, once 0PM has determined that an employee or applicant

is unsuitable for Federal employment. Although 0PM sets

forth factors it must consider in determining whether its

action under part 731 will promote the efficiency of the

service, those factors go to the very essence of the

suitability determination in the first instance, and not to

the propriety of the 'penalty' flowing therefrom." 42

M.S.P-R. 214, 221 (1969), aff'd, 904 F.2d 46 (1990)

(table); accord, Hutchcraft v. Dep't of Transp. , 55

M-S.P.R. 138, 143 (1992), a/f'd, 996 F.2d 1235 (Fed. Cir.

1993) (table).

Subsequent case law reaffirms that there is no basis

in regulation or judicial precedent to mitigate a

suitability removal under Part 731, let alone treat such a

removal as an adverse action subject to Chapter 75

procedures. In particular, the Federal Circuit has adopted

this principle.

!

The Federal Circuit ruled in Folio v. Department of

Homeland Security that ^Congress granted 0PM the authority

to define the scope of the Board's authority" to review

17
suitability determinations, and that under 0PM's

regulations in 5 C-F.R. § 731.501, '"the Board may consider

all aspects of a suitability determination, except the

actions taken pursuant to it." (See Agency Opening Br. 13,

citing Folio, 402 F.3d 1350, 1355 (Fed. Cir. .2005).)

The Board has appropriately applied Folio as

sustaining a limited scope of review. Citing Folio, the

Board recently ruled that the Board cannot review the

appropriateness of a suitability removal action when all of

the charges are sustained; and that the Board must remand

the case to OPM for a .determination of the appropriateness

of the removal action when fewer than all of the charges

are sustained, rather than reviewing the appropriateness of

the action itself. Sosa, 101 M.S.P.R. at 585; Doerr, 104

M.S.P.R. at 202. Appellant Aguzie's attempt to distinguish

Folio, $os&f and Doerr on the facts misapprehends the

nature of the decisions, which recognize fundamental

limitations on the Board's appellate jurisdiction over

suitability determinations. (See Aguzie Res. Br. 8-9, 11.)

18
D. The Appellants Fail to Establish that OPM's

Suitability Regulations Violate Employees' Fifth

Amendment Due Process Rights, or Require a

Standard of Proof Inconsistent with 5 U.S.C.

§ 7701

Appellant Scott argues that suitability removals

violate procedural due process under the Fifth Amendment

because they are undertaken by OPM rather than by the

employing agency, thereby allegedly denying the employee an

adequate opportunity to respond to the charges. ,(Scott

Res. Br. 11-12.) 0PM1's suitability regulations are clearly

constitutionally adequate because they afford a tenured

civil servant facing removal a pre-termination notice and

an opportunity to respond to charges, as well as a posttermination hearing. See 5 C.F.R. §§ 731.302 to 731.304,

731,501; Cleveland Bd. of Educ. v, Louctermill, 470 U.S..

532, 545-46 (1985).

Appellant Aguzie similarly argues that OPM's

suitability regulations are procedurally inadequate because

the Agency need only prove its case by substantial

evidence. (Aguzie Res. Br. 14,) The Appellant, howevet,

is simply mistaken as to this point. Under 5 U.S.C.

§ 7701(c)(1)(B), except in the case of a Chapter 43

performance action, *the decision of the agency shall b§

sustained . . . only if the agency1s,decision ... is

19
supported by a preponderance of the evidence." This

standard, of proof is equally applicable in adverse action

appeals and suitability appeals. (See Agency Opening Br.

26.)

Conclusion

For the reasons stated in the Agency's opening brief

and in this brief, an individual removed under Civil

Service Rule V and 5 C.F.R. Part 731 is entitled to appeal

his removal under Part 731, and may not appeal his removal

under 5 U.S.C. § 7513(d), The Board must review whether an

unfavorable suitability determination is supported by

preponderant evidence under the standards OPM has

prescribed in 5 C.F.R. Part 731. When the Board sustains

an unfavorable suitability determination, the Board is

foreclosed from reviewing the appropriateness of a removal

action taken pursuant to that determination.

20
30

?o

X Vd 81 :pl OL02/CO/3 0