A years-long legal battle waged by the Office of Personnel Management (OPM) to rob federal employees of their right to appeal to the Merit Systems Protection Board (MSPB) removal actions directed by the agency has finally been dealt a fatal blow. The U.S. Court of Appeals for the Federal Circuit recently ruled in OPM v. Hopper (2014) that OPM-directed removals are in fact appealable adverse actions and not suitability actions immune from MSPB intervention. This decision came five years after the Board, while I was serving as its chairman, dealt OPM an initial one-two punch.
The Hopper decision will have a tremendous impact on the cases of federal employees whose agencies have been ordered by OPM to remove them. No longer should OPM-directed removals be effected without consideration of the 12 Douglas factors, such as length of tenure and past disciplinary record, which could merit a lighter penalty.
These OPM-directed removal actions usually arise when OPM discovers a tenured employee had made material, intentional false statements or deception or fraud in regard to his or her job application or appointment. After discovering these falsities, OPM usually deems the employee unsuitable for his or her positions and subsequently orders the employing agency to remove him or her, cancel his or her reinstatement eligibility, and debar him or her from federal employment for three years. Employees could then appeal to the MSPB for a review of whether OPM properly applied the proper criteria to reach its suitability determination.
If the MSPB sustained the charge underlying the negative suitability determination, OPM wanted the case to end there. OPM’s “ultimate action,” the agency believed, was beyond the reach of the MSPB. But toward the end of my tenure at the MSPB, the Board in Aguzie v. OPM (2009) found validity of the regulation on which OPM based this belief was “in doubt.”
The appellant in Aguzie, a U.S. Commission on Civil Rights budget analyst, had been subjected to an OPM-directed removal on the charge of material, intentional false statement in examination or appointment. On appeal, an MSPB judge sustained the charge and affirmed OPM’s suitability determination. The Board had agreed with the MSPB judge and denied the appellant’s petition for review, but it reopened the case to look at “whether the appellant is entitled to appeal his removal…as an adverse action.” The Board found “the appellant in this case may have a statutory right to appeal his removal as an adverse action … notwithstanding OPM’s characterization of the removal as an action under [OPM regulation].” Consequently, the Board vacated the initial decision and remanded the case so the parties could further debate the issue.
On the heels of Aguzie, the Board issued a similar decision in Barnes v. OPM (2009), which revolved around the OPM-directed removal of a Department of Homeland Security Citizenship and Immigration Services adjudication officer on the charge of making a material, intentional false statement or deception or fraud in examination or appointment. This case, like Aguzie, was remanded, but OPM requested that Board, rather than an MSPB judge, address this issue. These two cases were merged, and in Aguzie and Barnes v. OPM (2011) the Board found tenured employees can appeal OPM-directed removals. The Board remanded both cases to determine whether the agency committed a harmful procedure error by failing to consider the Douglas factors. Last year the MSPB judge for Aguzie found, given the seriousness of this sustained conduct, the agency would have removed the appellant even if it had considered the Douglas factors. Meanwhile, another MSPB judge put Barnes on hold until the Federal Circuit decided on Hopper.
The OPM-directed removal of the appellant in Hopper, a Social Security Administration contract representative, was based on the same charge levied against Barnes’ appellant. Agreeing with the MSPB, the Federal Circuit in Hopper found an OPM-directed removal “is an appealable adverse action … which by its terms provides a tenured employee with the right to appeal a removal without any exception for removals based on a negative suitability determination.” Further, the court affirmed the MSPB’s decision to mitigate the appellant’s removal to a letter of reprimand, based on his 15 months of service with a successful performance review and no disciplinary issues. The appellant’s second-line supervisor also favored a lighter penalty.
It will be interesting to see if OPM backs away from directing the removals of employees for making false statements in connection to their applications or appointments now that the Federal Circuit has held that “OPM, as the deciding agency, bears the burden to persuade the Board of the appropriateness of the penalty imposed.” Hopper has afforded employees an opportunity to challenge the appropriateness of OPM-directed removals, and federal employees facing this type of adverse action should consult with an experienced employment law attorney and not let this opportunity go to waste.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at firstname.lastname@example.org.