Appeal Rights in Suitability Cases Affirmed

In Archuleta v. Hopper (USCA Fed. Cir. No. 2013-3177, December 8, 2014), a unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld the holding of the Merit Systems Protection Board that a removal of a non-probationary employee for unsuitability is an appealable adverse action indistinguishable from all other removals.

The employee, Hopper, who was past his probationary period, was removed from his position with the Social Security Administration at the direction of the Office of Personnel Management. OPM found the employee unsuitable for federal employment for allegedly making false statements on his employment application, by omitting two prior employments. OPM advised Hopper that it had directed SSA to terminate him, and that Hopper could appeal its decision to the Board under OPM’s suitability regulations, 5 CFR Part 731. Those regulations do not permit the MSPB full review of the removal because they preclude review of the appropriateness of the penalty under the seminal case Douglas v. VA., 5 M.S.P.R. 280, 305 (1981). Hopper appealed his removal to the Board.

However, while Hopper’s appeal was pending, the Board issued its decisions in Aguzie v. OPM, 112 M.S.P.R. 276 (2009), and Barnes v. OPM, 112 M.S.P.R. 273 (2009). In Aguzie and Barnes, the Board held that when OPM directs an agency to remove a tenured employee, the removal action is subject to 5 USC Chapter 75, including full Board appeal rights. OPM had argued that suitability cases were not appealable adverse actions under 5 USC Chapter 75 because they fell under OPM’s regulations at CFR Part 731. When Hopper then litigated his case before the Board, OPM refused to participate fully on the grounds that, contrary to the Board’s holding in Aguzie and Barnes, the Board did not have full appellate authority. The Board reversed Hopper’s removal, substituting a letter of reprimand as the reasonable discipline.

OPM appealed to the Federal Circuit arguing that the Board’s decisions in Aguzie and Barnes were wrongly decided. According to OPM, there has been a long-recognized separation between suitability actions by OPM and adverse actions by employing agencies. In response, the Board argued that the definitions of “employee” and “removal” are clear and unambiguous in 5 USC Chapter 75, which do not permit of exceptions for removals based on unsuitability.

The court agreed with the MSPB. The court found that the statutory language was plain and unambiguous. Therefore, OPM’s regulations carving out an exception are unavailing. According to the court, the various provisions of Chapter 75, defining employee, removals and describing the Board’s authority, “make clear that tenured employees . . . can seek Board review of adverse actions.” In fact, the court noted that when Congress exempted certain actions from Board review, it did not include removals for unsuitability in those exemptions.

The court reminded OPM that to the extent it believes that unsuitability removals should be exempted from MSPB jurisdiction, OPM’s avenue of redress is through the Congress, not through the court.

In the Board’s decision of Barnes v. OPM, Ms. Barnes was represented by Passman & Kaplan founding principal Joseph V. Kaplan.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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