Last week, the
United States Court of Appeals for the Federal Circuit released an important
decision confirming MSPB decisions guaranteeing advanced protections to
certain federal employees facing discipline from the Office of Personnel
Management (OPM). In Archuleta v. Hopper, the Court held that when a federal employee with
Merit Systems Protection Board (MSPB) appeal rights faces a suitability action brought by the OPM, the
employee is entitled to MSPB review of the action as an
adverse action under 5 U.S.C. § 75. This decision upheld the MSPB’s prior
decision in the case, as well as the recent MSPB decision in Aguzie v.
Office of Personnel Management, 112 M.S.P.R. 276 (2009).
Traditionally, the OPM has been able to subject
federal employees to suitability actions under a different legal framework than is provided
for most adverse actions taken against federal employees with MSPB appeal
rights. OPM’s regulations provided this framework. In Aguzie, however,
the MSPB found that employees with MSPB appeal rights under 5 U.S.C. §
7511 were entitled to have the MSPB decide their case as it would any
other adverse action.
This is more favorable to employees because it means that the MSPB must
review the appropriateness of the suggested adverse action, which includes
considering any mitigating factors. It also means that the employing Agency, which did not initiate the proposed
action, would be the respondent in challenges to the action before the MSPB.
In the case decided last week, Tony Hopper was a preference eligible veteran
working as a Contract Representative with the Social Security Administration
(SSA) who was accused by the OPM of omitting and misrepresenting his employment
history on his application for federal employment. The OPM ordered the
SSA to remove Hopper for this transgression, and Hopper appealed to the
MSPB. After proceedings were halted to see how the MSPB decided Aguzie,
an administrative judge applied Aguzie and decided the case as an adverse
action, taking mitigating factors into account and determining that a
letter of reprimand was the appropriate sanction even though Hopper was
found to have lied on his application. The full MSPB upheld the decision,
and the OPM appealed to the US Court of Appeals for the Federal Circuit,
arguing that the holding in Aguzie was incorrect because OPM regulations
governed suitability actions and, alternatively, that the relevant statutes
created ambiguity that the OPM had reasonably interpreted.
The Court agreed with the MSPB’s rulings, finding that the clear
statutory language of 5 U.S.C. Chapter 75 and the Civil Service Reform
Act (5 U.S.C. Chapter 12) unambiguously mandated that suitability actions
against employees with MSPB appeal rights be decided as adverse actions.
OPM’s regulations to the contrary were therefore superseded. The
Court further agreed that a letter of reprimand was appropriate in light
of the mitigating circumstances considered by the administrative judge,
which included a positive performance evaluation of Mr. Hopper at the
SSA and favorable testimony from Mr. Hopper’s supervisor there.
This decision means that once federal employees secure MSPB appeal rights,
they enjoy greater protection from the OPM and can have actions taken
against them decided under the much more forgiving framework of adverse
actions before the MSPB.
If you are a federal employee trying to enforce your rights, it is best
to consult an attorney familiar with federal employment issues.