Rare Oral Argument Before MSPB

On October 18, 2010, Joseph V. Kaplan, Founding Principal of Passman & Kaplan, P.C., presented an oral argument before the three members of the Merit Systems Protection Board for the appellant in the matter of Holley C. Barnes v. Office of Personnel Management, MSPB Docket No. DC-0731-09-0260-R-1. Barnes's case had been consolidated with the cases of three other appellants for the purpose of the oral argument. It was only the second time in 27 years that the Board heard oral argument in a matter before it.

The legal issue addressed by Kaplan and the other appellants was: when OPM directs an agency to remove an employee for suitability purposes, whether the MSPB can consider the employee's appeal of that removal under 5 U.S.C., Chapter 75, which is the statute that principally covers appeals of removals of non-probationary employees for misconduct, and in some instances, for performance. In a packed courtroom, the oral argument was lively, with all three Board members interrupting all counsel for the appellants, OPM, and intervening parties with questions to challenge assertions made by the parties.

Barnes had been hired by the Department of Homeland Security, Citizenship and Immigration Service (CIS) effective November 12, 2006. More than two years later, on December 1, 2008, OPM determined her unsuitable for her position, based on an allegation that she had provided false information with respect to her educational background when she applied for the position. As a result of its finding, OPM directed CIS to remove her from her position and also ruled that Barnes was barred from applying for a federal government position in the competitive service for three years. Now the MSPB was confronted with the issue of whether Barnes and the other appellants could appeal their removals as any other non-probationary federal employee removed for misconduct would.

The principal challenge of an oral argument is being able to articulate the most important points made, in the written legal brief, in a very short period of time. Kaplan presented multiple arguments on behalf of Barnes. He argued that OPM was without the legal authority to limit the statutory rights conferred by 5 U.S.C. Chapter 75. He also focused on the language of the pertinent statutes at issue in the case, arguing that their meaning could be ascertained from a "plain reading" of the terms, and that a plain reading lead to the conclusion that Barnes could appeal her removal under Chapter 75. Moreover, Kaplan focused on the important distinction between probationary and non-probationary employees, arguing that OPM did not have authority over "employees" like Barnes, who had completed their probationary periods.

The argument was heard at the United States Court of Appeals for the Federal Circuit, located across the street from the White House. At the conclusion of the oral argument, the Board thanked all of the attorneys who presented. A decision in the case is currently pending as the Board considers all of the arguments presented by the parties.

* 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.