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Office of Personnel Management Suitability Actions May Now Be Decided as Adverse Actions Before the Merit Systems Protection Board

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.