News from the Federal Circuit: In Archuleta v. Hopper, ___ F.3d ___, 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 (MSPB) that a removal of a non-probationary employee for unsuitability is an appealable adverse action indistinguishable for all other removals. In doing so, the Federal Circuit upheld the MSPB's holding in the Aguzie/Barnes line of cases, previously analyzed by Passman & Kaplan in the Federal Legal Corner.
The employee, Hopper, who was past his probationary period, was removed from his position with the Social Security Administration (SSA) at the direction of the Office of Personnel Management (OPM). 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 MSPB under OPM's suitability regulations, 5 C.F.R. 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 MSPB. However, while Hopper's appeal was pending, the MSPB 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 MSPB held that when OPM directs an agency to remove a tenured employee, the removal action is subject to 5 U.S.C. Chapter 75, including full MSPB appeal rights. OPM had argued that suitability cases were not appealable adverse actions under 5 U.S.C. Chapter 75 because they fell under OPM's regulations at 5 C.F.R. Part 731. When Hopper then litigated his case before the MSPB, OPM refused to participate fully on the grounds that, contrary to the MSPB's holding in Aguzie and Barnes, the MSPB did not have full appellate authority. The MSPB reversed Hopper's removal, substituting a letter of reprimand as the reasonable discipline.
OPM appealed to the Federal Circuit, arguing that the MSPB's decision in Aguzie and Barnes v. OPM, 116 M.S.P.R. 64 (2011) was 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 MSPB argued that the definitions of "employee" and "removal" are clear and unambiguous in 5 U.S.C. 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 MSPB 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.
Ms. Barnes was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan in the 2011 Aguzie and Barnes appeal.
If you are a federal employee whose removal is being proposed based on unsuitability allegations, and you wish to discuss your rights, please consider contacting Passman & Kaplan, P.C. to request an initial consultation.