MSPB May Review OPM Suitability Determinations

The Merit Systems Protection Board (MSPB or Board) has held, for the first time, that OPM-directed suitability determinations are subject to full MSPB review under 7 USC § 7513, which includes a review of the penalty determination. In so doing, the Board found certain Office of Personnel Management (OPM) regulations that interfere with those appeal rights to be inconsistent with the Board's statutory authority. Passman & Kaplan Founding Principal Joseph V. Kaplan represented Holley C. Barnes at oral argument on this appeal, which was only the second oral argument held by the MSPB in the past 27 years. Aguzie, Barnes v. Office of Personnel Management, 2011 MSPB 10.

At issue in the Barnes case was an order from OPM to the Department of Homeland Security (DHS), Ms. Barnes' employing agency, directing that Barnes, a non-probationary employee, be removed from her position, declared ineligible for other pending competitive selections and debarred from the federal competitive service for three years. OPM found Barnes unsuitable for federal employment for an alleged falsification of her employment application. Barnes appealed to the MSPB.

Under OPM regulations, however, the MSPB was restricted in its review and could not, for example, review the appropriateness of the decision to impose removal, debarment and cancellation of eligibility as penalties. In reviewing the relevant statutes and legislative history, the MSPB found that OPM exceeded its authority in promulgating regulations which purport to strip the MSPB of full authority to review the OPM suitability determination and the chosen penalty.

In holding OPM's regulations inconsistent with the Board's statutory authority, the MSPB confirmed its authority to review the merits of OPM's suitability determination, as well as to examine the propriety of OPM's penalty determination under the MSPB's Douglas mitigation factors. Further, agreeing with Kaplan's argument, the MSPB also extended its authority to review additional penalties imposed, such as the penalties of debarment and cancellation of eligibility as part of an appeal of an OPM unsuitability determination.

As a result of the Board's decision, Barnes' case was ordered remanded to the administrative judge for further proceedings to determine, in the main, whether her removal, and other penalties, were justified by all the facts in this case.

* 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 https://www.passmanandkaplan.com.