Archuleta v. Hopper , 773 F.3d 1289 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
KATHERINE ARCHULETA, Director,
Office of Personnel Management,
Petitioner,
v.
TONY D. HOPPER,
Respondent,
AND
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3177
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0731090798-I-3.
______________________
Decided: December 8, 2014
______________________
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
petitioner. With her on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were KAMALA VASAGAM, General
2 ARCHULETA v. HOPPER
Counsel, KATHIE ANN WHIPPLE, Deputy General Counsel,
STEVEN E. ABOW, Assistant General Counsel and ROBERT
J. GIROUARD, Senior Counsel, Office of Personnel Man-
agement, of Washington, DC.
ANDRES M. GRAJALES, Deputy General Counsel,
AFGE, Office of the General Counsel, of Washington, DC,
argued for respondent Tony D. Hopper.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent Merit Systems Protection
Board. With him on the brief was BRYAN G. POLISUK,
General Counsel.
GREGORY O’DUDEN, General Counsel, National Treas-
ury Employees Union, of Washington, DC, for amicus
curiae National Treasury Employees Union. With him on
the brief were LARRY J. ADKINS, Deputy General Counsel,
and PARAS N. SHAH, Assistant Counsel.
______________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
O’MALLEY, Circuit Judge.
Katherine Archuleta, Director of the Office of Person-
nel Management (“OPM”), petitions for review of a final
order of the Merit Systems Protection Board (“the Board”)
holding that an individual who meets the definition of an
“employee” under 5 U.S.C. § 7511(a)(1) has a statutory
right to appeal his OPM-directed suitability removal as
an adverse action under 5 U.S.C. chapter 75, subchapter
II. Hopper v. Office of Pers. Mgmt., 118 M.S.P.R. 608(2012), aff’g Hopper v. Office of Pers. Mgmt., No. CH-0731-
09-0798-I-3, 2012 MSPB LEXIS 1353 (Initial Decision,
Mar. 8, 2012). OPM argues that the Board erred in
approaching this case as an adverse action appeal under
chapter 75 of title 5, rather than as a suitability action
ARCHULETA v. HOPPER 3
under OPM’s regulations. Specifically, OPM argues that
the Board improperly expanded its jurisdiction when it
held that it can review OPM’s suitability actions and can
modify the ultimate action taken when OPM has found
that an employee is not suitable for federal employment.
We previously granted OPM’s petition for review under 5
U.S.C. § 7703(d), which allows OPM to seek review of a
Board decision when it determines that the Board erred
in interpreting a civil service law, rule, or regulation and
that the Board’s decision will have a substantial impact
on the administration of the civil service system. Kaplan
v. Hopper, 533 F. App’x 997, 999 (Fed. Cir. 2013). Be-
cause the statutory language is clear, and because no
provision of the Civil Service Reform Act (“CSRA”), Pub.
L. No. 95-454, 92 Stat. 1111 (1978), exempts suitability
removals from the Board’s jurisdiction under chapter 75,
we affirm the Board’s decision to review Respondent Tony
Hopper’s removal as an adverse action appeal, which
includes review of the appropriateness of the penalty
imposed. We further affirm the Board’s decision mitigat-
ing Hopper’s removal to a letter of reprimand.
BACKGROUND
In April 2008, Tony Hopper (“Hopper”) was appointed
to the position of Contract Representative with the Social
Security Administration (“the SSA”) in Florence, Ken-
tucky. The SSA subsequently requested that OPM con-
duct a background investigation.
Roughly 15 months after his appointment, OPM in-
formed Hopper that it found “a serious question” regard-
ing his suitability for federal employment due to false
statements he made in connection with his application
and appointment. When asked on his application wheth-
er, during the past five years, he had been fired from any
job or had quit after being told he would be fired, Hopper
responded “no.” To the contrary, OPM alleged that Hop-
per had been fired from a forklift driver position in Octo-
4 ARCHULETA v. HOPPER
ber 2007, and from a truck driver position with a different
company in December 2006. Initial Decision, 2012 MSPB
LEXIS 1353, at *4. OPM further charged that, in re-
sponse to a question requesting a list of all employment
activities for the past five years, Hopper failed to report
his employment in the truck driver position from which
he was terminated.
OPM notified Hopper that it would instruct the SSA
to remove him based on the charge of “Material, inten-
tional false statement, or deception or fraud in examina-
tion or appointment.” Hopper responded in writing and
submitted supporting documents. He claimed that: (1) he
was not fired from either position; and (2) if he failed to
report his employment as a truck driver, “it was an hon-
est mistake.” Joint Appendix (“J.A.”) 145.
In a letter dated July 14, 2009, OPM informed Hopper
that it directed the SSA to remove him, to cancel his
eligibility for reinstatement, and to debar him from feder-
al employment for three years, or until July 14, 2012.
OPM explained that these actions were based on Hopper’s
failure to report his two prior employment terminations.
OPM rejected Hopper’s assertions that his resignations
were voluntary, citing his employment records and state-
ments from his former employers. OPM advised Hopper
that he could appeal its decision to the Board under the
appeal rights provided in OPM’s suitability regulations: 5
C.F.R. part 731. Pursuant to OPM’s directive, the SSA
removed Hopper effective July 31, 2009.
Hopper timely appealed OPM’s July 14, 2009 negative
suitability decision to the Board. While Hopper’s appeal
was pending, the Board issued a pair of decisions—Aguzie
v. Office of Personnel Management, 112 M.S.P.R. 276(2009) and Barnes v. Office of Personnel Management, 112
M.S.P.R. 273 (2009)—which questioned whether an
individual who meets the definition of an “employee”
under 5 U.S.C. § 7511(a)(1) and is separated pursuant to
ARCHULETA v. HOPPER 5
an OPM suitability action retains a statutory right to
appeal his removal as an “adverse action” under 5 U.S.C.
chapter 75 subchapter II. See Aguzie, 112 M.S.P.R. at 279
(“On remand, the parties shall be provided an opportunity
to brief the question of whether the appellant is entitled
to appeal his removal under 5 U.S.C. § 7513(d) . . . .”); see
Barnes, 112 M.S.P.R. at 275 (“[W]e reopen this case to
address the question, not raised below or on petition for
review, of whether the appellant is entitled to appeal her
removal to the Board as an adverse action under 5 U.S.C.
chapter 75, subchapter II.”). Because Hopper met the
definition of an “employee,” the administrative judge
dismissed his appeal without prejudice to refiling depend-
ing upon resolution of the issue in Aguzie.
In January 2011, the Board issued its decision in
Aguzie, holding that, when OPM directs an agency to
remove a tenured employee, the removal action is subject
to the requirements of chapter 75, including the right to
appeal to the Board guaranteed in 5 U.S.C. § 7513(d).
Aguzie v. Office of Pers. Mgmt, 116 M.S.P.R. 64, 66 (2011).
Post-Aguzie, the administrative judge automatically
refiled Hopper’s appeal, and conducted a hearing via
videoconference on October 26, 2011. During the hearing,
representatives for OPM gave an opening statement
criticizing the Aguzie decision but otherwise refused to
participate. Specifically, OPM’s representative stated
that: (1) “OPM is simply incapable of adjudicating suita-
bility actions under chapter 75;” and (2) OPM considered
suitability factors in connection with this case, but did not
consider mitigating or aggravating factors which are
relevant under chapter 75. J.A. 461-62. Hopper present-
ed testimony from his second-line supervisor at the SSA:
Assistant District Manager Sidney Egleston. In relevant
part, Egleston “expressed continued confidence in [Hop-
per] and testified that he would have issued a lesser
penalty, such as a letter of reprimand, rather than impose
the penalty of removal.” Hopper, 118 M.S.P.R. at 610.
6 ARCHULETA v. HOPPER
In an Initial Decision dated March 8, 2012, the ad-
ministrative judge explained that, although this case
originated as a suitability action, because Hopper quali-
fies as an employee, he is entitled to appeal his removal
as an “adverse action” under chapter 75 pursuant to the
Board’s decision in Aguzie. The administrative judge
sustained OPM’s charge that Hopper provided false
statements during his Federal appointment process. The
judge then found that OPM did not engage in harmful
procedural error in failing to consider the Douglas factors
in its suitability action because Aguzie changed the appli-
cable standard. See Douglas v. Veterans Admin., 5
M.S.P.R. 280, 305 (1981). Even if OPM had considered
those factors, however, the administrative judge found
that OPM would have made the same decision to direct
Hopper’s removal. Initial Decision, 2012 MSPB LEXIS
1353, at *8-9.
Pursuant to the Board’s decision in Aguzie, the ad-
ministrative judge conducted an independent review of
the relevant Douglas factors. Specifically, the judge noted
that Hopper had served 15 months with the SSA, had no
prior discipline, and had received a successful rating on
his performance review. Id. at *10. Given Egleston’s
unchallenged testimony expressing confidence in Hopper’s
performance and a preference for a lesser penalty, the
administrative judge mitigated OPM’s action from remov-
al to a letter of reprimand.
OPM petitioned the full Board for review, and the Di-
rector of OPM intervened. The parties did not dispute
any of the administrative judge’s factual findings or his
conclusion that Hopper failed to demonstrate a harmful
procedural error. Importantly, it was undisputed that
Hopper was an “employee” under 5 U.S.C. § 7511(a)(1)(B)
at the time of his removal due to his status as a prefer-
ence eligible veteran. Because OPM did not object to any
of the administrative judge’s factual findings, the Board
found no basis to disturb them. OPM focused its argu-
ARCHULETA v. HOPPER 7
ments on attacking the legal framework set forth in
Aguzie. The Board found OPM’s arguments unpersua-
sive, and concluded that the administrative judge applied
the appropriate analysis to mitigate Hopper’s removal.
The Director of OPM petitioned this court to review
the Board’s final decision pursuant to 5 U.S.C. § 7703(d).
In an order dated September 18, 2013, we granted that
petition, concluding that OPM “has shown the necessary
impact and that our jurisdiction is warranted.” Kaplan v.
Hopper, 533 F. App’x 997, 999 (Fed. Cir. 2013). Accord-
ingly, we have jurisdiction under 5 U.S.C. § 7703(d).
DISCUSSION
On appeal, OPM argues that this court should reverse
the Board’s decision “upending the long standing and
well-established separation between suitability actions by
OPM and adverse actions by employing agencies.” Peti-
tioner Br. 15. OPM maintains that: (1) Hopper’s appeal
should have been adjudicated as a suitability action under
5 C.F.R. § 731.501, rather than as an adverse action
appeal under chapter 75; and (2) the Board erred in
considering and applying mitigating factors to Hopper’s
suitability appeal. In the alternative, OPM submits that
the governing statutes create an ambiguity with respect
to whether suitability actions are included within the
definition of a “removal” in 5 U.S.C. § 7512, and thus the
Board “should have deferred to OPM’s reasonable inter-
pretation of chapter 75 as being inapplicable to suitability
actions.” Petitioner Br. 16.
The Board responds that the CSRA defines who quali-
fies as an “employee” for purposes of Board review under
chapter 75, and it is undisputed that Hopper meets that
definition. And, although the CSRA specifies the types of
removals that are excepted from Board review, it does not
include an exception for removals based on suitability
determinations. Accordingly, the Board maintains that
Hopper’s removal is an appealable adverse action under
8 ARCHULETA v. HOPPER
chapter 75. Because the statutory text is clear, the Board
submits that we need not address OPM’s deference argu-
ments. Finally, the Board argues that OPM intentionally
failed to meet its burden of showing that the penalty
imposed on Hopper was reasonable.
Hopper similarly argues that: (1) the Board’s decision
is consistent with the CSRA, which places removal ap-
peals within the Board’s jurisdiction and contains no
exemption for suitability-based removals; and (2) even if
there is some ambiguity as to what constitutes a “remov-
al” for purposes of chapter 75, it is the Board’s interpreta-
tion that is entitled to deference under Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), not that of OPM.
The scope of our review in an appeal from the Board is
limited by statute. We must affirm the Board’s decision
unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). We review the
Board’s legal determinations, including its interpretation
of a statute, de novo. McCollum v. Nat’l Credit Union
Admin., 417 F.3d 1332, 1337 (Fed. Cir. 2005). We review
the Board’s findings of fact for substantial evidence. Id.As explained below, we agree with the Board that
Hopper’s removal is an appealable adverse action under
chapter 75, which by its terms provides a tenured em-
ployee with the right to appeal a removal without any
exception for removals based on a negative suitability
determination. Because we find the statutory text unam-
biguous, we do not decide which agency’s interpretation of
that text is due deference or whether their respective
interpretations would be worthy of deference. We further
find that the Board applied the appropriate analysis in
ARCHULETA v. HOPPER 9
assessing the penalty and mitigating Hopper’s removal to
a letter of remand.
A. The CSRA Grants the Board Jurisdiction Over
Removal Appeals Involving Employees
Resolution of this appeal involves the interpretation
of and interplay between several provisions of the CSRA
on the one hand, and OPM’s suitability regulations on the
other. It also involves the relationship between OPM and
the Board, including their respective roles in the civil
service system. It is well established that “statutory
construction begins with the language of the statute
itself.” Van Wersch v. Dep’t of Health & Human Servs.,
197 F.3d 1144, 1148 (Fed. Cir. 1999). “If the statutory
language is plain and unambiguous, then it controls, and
we may not look to the agency regulation for further
guidance.” Info. Tech. & Applications Corp. v. United
States, 316 F.3d 1312, 1320 (Fed. Cir. 2003) (citing Chev-
ron, 467 U.S. at 842-43).
Turning to the statutory text, the CSRA grants the
Board the power to adjudicate matters falling within its
jurisdiction. 5 U.S.C. § 1204(a). 1 Under the CSRA,
1 In relevant part, § 1204(a) provides that the
Board shall:
(1) hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the juris-
diction of the Board under this title, chapter
43 of title 38, or any other law, rule, or regula-
tion, and, subject to otherwise applicable pro-
visions of law, take final action on any such
matter;
(2) order any Federal agency or employee to com-
ply with any order or decision issued by the
Board under the authority granted under par-
10 ARCHULETA v. HOPPER
“employees”—as defined in 5 U.S.C. § 7511(a) 2—are
entitled to appeal to the Board from: (1) a removal; (2) a
suspension for more than 14 days; (3) a reduction in
grade; (4) a reduction in pay; and (5) a furlough of 30 days
or less. 5 U.S.C. § 7512(1)-(5).
Section 7512 then lists the following actions as falling
outside the coverage of the statute:
(A) a suspension or removal under section 7532 of
this title,
(B) a reduction-in-force action under section 3502
of this title,
(C) the reduction in grade of a supervisor or man-
ager who has not completed the probationary pe-
riod under section 3321(a)(2) of this title if such
reduction is to the grade held immediately before
becoming a supervisor or manager,
(D) a reduction in grade or removal under section
4303 of this title, or
agraph (1) of this subsection and enforce com-
pliance with any such order . . .
5 U.S.C. § 1204(a)(1)-(2).
2 Under § 7511, an “employee” means: (1) “an indi-
vidual in the competitive service” who is not serving a
probationary or trial period or who has completed 1 year
of current continuous service; (2) “a preference eligible in
the excepted service who has completed 1 year of current
continuous service in the same or similar positions;” and
(3) “an individual in the excepted service (other than a
preference eligible)” who is not serving a probationary or
trial period or who has completed 2 years of current
continuous service in the same or similar positions. 5
U.S.C. § 7511(a)(1)(A)-(C).
ARCHULETA v. HOPPER 11
(E) an action initiated under section 1215 or 7521
of this title.
5 U.S.C. § 7512(A)-(E).
Section 7513(d) of the CSRA provides that an employ-
ee who is subject to an action listed in § 7512 is “entitled
to appeal to the Merit Systems Protection Board under
section 7701.” 5 U.S.C. § 7513(d). Section 7701, in turn,
grants an employee the right to submit an appeal to the
Board of “any action which is appealable to the Board
under any law, rule, or regulation,” and provides that
“appeals shall be processed in accordance with regulations
prescribed by the Board.” 5 U.S.C. § 7701(a).
Taken together, these statutory provisions make clear
that tenured employees—those individuals who meet the
definition of an “employee” set forth in § 7511—can seek
Board review of adverse actions as defined in § 7512,
including removals. Nothing in the text of the CSRA
excludes suitability-based removals from the coverage of
chapter 75. In fact, when Congress delineated the types
of actions that are outside the scope of § 7512, it did not
include an exemption for suitability removals. Applying
the canon of expressio unius est exclusio alterius, no
exceptions should be read into § 7512 beyond the five that
Congress specifically created. See United States v. Smith,
499 U.S. 160, 167 (1991) (“‘Where Congress explicitly
enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence
of evidence of a contrary legislative intent.”’) (quoting
Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17
(1980)); see also Ventas, Inc. v. United States, 381 F.3d
1156, 1161 (Fed. Cir. 2004) (“Where Congress includes
certain exceptions in a statute, the maxim expressio unius
est exclusio alterius presumes that those are the only
exceptions Congress intended.”). Accordingly, we can
infer that suitability-based removals are included within
the scope of § 7512.
12 ARCHULETA v. HOPPER
Here, it is undisputed that Hopper qualifies as an
“employee” because he is a preference eligible veteran in
the excepted service who has completed 1 year of current
continuous service in the same or similar position. See 5
U.S.C. § 7511(a)(1)(B). It is also undisputed that Hopper
was removed from his position with the SSA. OPM ar-
gues, however, that a removal is not a “removal” within
the meaning of chapter 75 when it is based on a suitabil-
ity determination. OPM fails to cite a single statutory
provision supporting this position. Instead, OPM points
to general statutory grants of authority and to its own
regulations. As explained below: (1) none of the statutes
upon which OPM relies exempts suitability-based remov-
als from the Board’s jurisdiction under chapter 75; and
(2) OPM’s regulations cannot override the unambiguous
language of § 7512.
OPM maintains that the CSRA preserved OPM’s pre-
CSRA control over suitability matters. Specifically, OPM
cites 5 U.S.C. §§ 1101, 1103, and 1104 for the proposition
that Congress intended OPM to have control over suita-
bility actions and that it recognized a distinction between
suitability actions and adverse actions taken by employ-
ing agencies. None of these provisions supports OPM’s
position, however.
First, Section 1101 provides that OPM “is an inde-
pendent establishment in the executive branch.” 5 U.S.C.
§ 1101. Section 1103 establishes the functions of the
Director of OPM and provides, in relevant part, that the
Director shall be responsible for “executing, administer-
ing, and enforcing” the civil service rules and regulations
and other activities of the office, “except with respect to
functions for which the Merit Systems Protection Board or
the Special Counsel is primarily responsible.” 5 U.S.C.
§ 1103(a)(5) (emphasis added). Likewise, § 1104 provides
that the Director has authority to “prescribe regulations
and to ensure compliance with the civil service laws,
rules, and regulations.” 5 U.S.C. § 1104(b)(3). OPM cites
ARCHULETA v. HOPPER 13
several additional statutes which give it the general
authority to prescribe regulations for the admission of
applicants into the civil service. 3
While these authorities stand for the proposition that
OPM can promulgate suitability regulations, they do not
alter the Board’s statutory jurisdiction to adjudicate
removal appeals. Indeed, § 7514 grants OPM authority to
prescribe regulations “except as it concerns any matter
with respect to which the Merit Systems Protection Board
may prescribe regulations.” 5 U.S.C. § 7514. The CSRA
specifically provides that removals are adverse actions
appealable to the Board, and we decline OPM’s invitation
to rewrite the statute to add suitability removals to the
list of those matters not subject to appeal in § 7512.
Despite the unambiguous statutory text, OPM argues
that its regulations at 5 C.F.R. §§ 731.203(f) and
752.401(b)(10), which purport to exclude suitability ac-
tions from coverage under chapter 75, are controlling. 4
OPM cannot introduce ambiguity into the statute through
3 See 5 U.S.C. § 1302(a) (providing that OPM “shall
prescribe regulations for, control, supervise, and preserve
the records of, examinations for the competitive service”);
5 U.S.C. § 3301(a) (stating that the President may “pre-
scribe such regulations for the admission of individuals
into the civil service in the executive branch as will best
promote the efficiency of that service”); 5 U.S.C. § 3302(stating that the President “may prescribe rules governing
the competitive service” and the rules shall provide for
“necessary exceptions of positions”).
4 5 C.F.R. § 731.203(f) provides that “an action to
remove . . . an employee for suitability reasons under . . .
part 731 is not an action under part 752,” which includes
chapter 75. 5 C.F.R. § 752.401(b)(10) similarly provides
that part 752 procedures do not apply to actions “taken or
directed by [OPM] under part 731 . . . of this chapter.”
14 ARCHULETA v. HOPPER
its regulations, however. See Van Wersch, 197 F.3d at
1148 (“If the language is clear, the plain meaning of the
statute will be regarded as conclusive.”). Indeed, Con-
gress made clear that it did not intend for OPM to have
that authority. See S. Rep. No. 95-969, at 51 (1978),
reprinted in 1978 U.S.C.C.A.N. 2723, 2773 (“OPM does
not have authority, however, to issue regulations which
would undermine the authority of the Board directly or
indirectly to regulate the procedures under which it
reviews matters appealed to it, or the authority of the
Board to decide matters in accordance with its interpreta-
tion of applicable law.”).
OPM submits that its regulations are valid under the
savings provision of the CSRA, § 902(a). Specifically,
OPM maintains that § 902(a) preserved a “distinction
between suitability actions and adverse actions by em-
ploying agencies.” Petitioner Br. 22. OPM’s reliance on
the savings provision is misplaced. That provision states,
in part, that, “[e]xcept as otherwise provided in this Act,
all executive orders, rules, and regulations affecting the
Federal service shall continue in effect, according to their
terms, until modified, terminated, superseded, or re-
pealed” by the President or OPM. CSRA § 902(a), 92 Stat.
at 1223.
As an initial matter, because OPM modified its regu-
lations after the CSRA was enacted, it can no longer rely
on the savings provision which specifically states that
preexisting rules shall continue in effect “until modified.”
More importantly, however, § 902(a) demonstrates that,
although certain rules may have been preserved, no rules
that conflict with the CSRA survive under the Act. Ac-
cordingly, to the extent OPM alleges that its suitability
action appeal rules were part of the pre-CSRA scheme,
they were not preserved under the savings provision
because they are inconsistent with § 7512.
ARCHULETA v. HOPPER 15
OPM argues that § 7512 is ambiguous because, “by its
plain terms,” it “does not cover all removals.” Petitioner
Br. 28. But the statute provides that it applies to “a
removal” and then lists specific exceptions. That there is
no exception for suitability-based removals does not
render the statute ambiguous. Instead, it supports the
inference that Congress did not intend to create such an
exception. This is especially true given that the language
used in § 7512 is not open ended, and does not invite
additional exceptions. See Smith, 499 U.S. at 167(“Where Congress explicitly enumerates certain excep-
tions to a general prohibition, additional exceptions are
not to be implied . . . .”).
OPM also cites Horner v. Andrzjewski, 811 F.2d 571(Fed. Cir. 1987), for the broad proposition that § 7512 is
ambiguous. At issue in Horner was an OPM regulation
which exempted emergency furloughs from the statutory
thirty day notice requirement for adverse actions. The
Board found the regulation invalid on grounds that:
(1) § 7512 defines a furlough of thirty days or less as an
adverse action; and (2) § 7513(b) requires thirty days
advance written notice for any adverse action. Id. at 574.
On appeal, this court concluded that there was an ambi-
guity in the statute and that OPM’s regulation “merely
resolve[d] that ambiguity.” Id. at 576. We explained that,
“[i]f an emergency furlough action is taken because an
agency has no choice, rather than for the ‘efficiency of the
service’ . . . it can reasonably be said that the agency did
not ‘take an action’ covered by chapter 75. Thus, the
notice provision of section 7513(b) would be inapplicable.”
Id. at 576. Unlike the emergency furlough at issue in
Horner, however, a removal is an adverse action under
§ 7512, and it is undisputed that the SSA removed Hop-
per. Accordingly, Horner is readily distinguishable.
The Board concedes that “OPM can direct a suitabil-
ity-based removal action after an employee has been on
the job for 10, 15, or even 30 years.” Respondent MSPB
16 ARCHULETA v. HOPPER
Br. 24. That said, a tenured employee has a statutory
right to Board review of that removal under chapter 75.
OPM cites Folio v. Department of Homeland Security, 402
F.3d 1350, 1355 (Fed. Cir. 2005), as evidence that this
court “has held that OPM’s regulations properly prevent
the board from reviewing its suitability actions.” Peti-
tioner Br. 17. Folio did not involve a tenured employee
with chapter 75 appeal rights, however. Instead, it in-
volved a job applicant whose tentative offer for employ-
ment was rescinded following a background check. Folio,
402 F.3d at 1355. Because Folio was not an employee, he
was not entitled to appeal to the Board pursuant to 5
U.S.C. § 7513(d). Nor was the agency’s withdrawal of his
tentative offer of employment an action covered by 5
U.S.C. § 7512. Folio’s only avenue of appeal to the Board
was provided under 5 C.F.R. § 731.501, which states that
the Board may consider all aspects of a suitability deter-
mination, but may not review or modify the actions taken
pursuant to that determination. Because Hopper is a
tenured employee, the court’s analysis in Folio does not
apply.
According to OPM, its suitability regulations do not
treat tenured employees differently because “mere com-
pletion of 12 months of service cannot shield a person
from the consequences of, for example, making material,
intentional false statements in order to obtain a position
with the Federal Government.” Petitioner Br. 32 (citing
73 Fed. Reg. 20149, 20151 (Apr. 15, 2008)). OPM main-
tains that the Board’s decision creates an inconsistency
wherein the Board cannot review or mitigate OPM’s
selected suitability action in cases involving individuals
without chapter 75 appeal rights, but where the individu-
al qualifies as an “employee,” the Board can substitute its
judgment for that of OPM.
While OPM strongly urges that its authority should
not be circumscribed, it is not irrational to think Congress
intended to do just that; giving broad authority to OPM
ARCHULETA v. HOPPER 17
unless and until an individual attains “employee” status.
To the extent OPM believes that § 7512 should include an
exception for actions taken against tenured employees
based on suitability determinations, it must make its case
to Congress rather than this court. If Congress deter-
mines that an individual in Hopper’s position should not
have the right to appeal a negative suitability decision as
an adverse action under chapter 75, it can amend the
CSRA to include suitability actions in the list of those
matters not subject to appeal. See Reid v. Dep’t of Com-
merce, 793 F.2d 277, 284 (Fed. Cir. 1986) (“‘The remedy
for any dissatisfaction with the results in particular cases
lies with Congress’ and not this court. ‘Congress may
amend the statute; we may not.’” (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982)).
Until it does so, however, we must apply the statute as
written. See Van Wersch, 197 F.3d at 1152 (“[W]hen a
statute expresses its purpose in short, clear terms, the
duty of the court is to apply the statute as written.”)
(citation omitted). 5
5 To the extent OPM’s regulations at 5 C.F.R.
§§ 731.203(f) and 752.401(b)(10) are inconsistent with the
Board’s statutory obligation to adjudicate appeals under
§ 7513(d), they are invalid. See Van Wersch, 197 F.3d at
1151 n.7 (“By the same token, to the extent that OPM’s
regulations are contrary to the proposition that an indi-
vidual is an ‘employee’ if he or she meets the require-
ments of either 5 U.S.C. § 7511(a)(1)(C)(i) or (ii), they are
invalid.”); see also Fed. Election Comm’n v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 32 (1981)
(“[T]he courts are the final authorities on issues of statu-
tory construction. They must reject administrative con-
structions of the statute, whether reached by adjudication
or by rulemaking, that are inconsistent with the statutory
18 ARCHULETA v. HOPPER
B. Mitigation of the Penalty
Because Hopper is a tenured employee, he has a stat-
utory right to appeal his removal to the Board under 5
U.S.C. § 7513(d). It is well established that the Board’s
jurisdiction under § 7513(d) includes the authority to
review the agency’s penalty determination using the
factors articulated in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305 (1981). See U.S. Postal Serv. v.
Gregory, 534 U.S. 1, 5 (2001) (noting that “the agency
bears the burden of proving its charge by a preponderance
of the evidence” and that, “[u]nder the Board’s settled
procedures, this requires proving not only that the mis-
conduct actually occurred, but also that the penalty
assessed was reasonable in relation to it”) (citing Douglas,
5 M.S.P.R. at 304-05).
OPM objects to the Board’s application of chapter 75
to Hopper’s case, and argues that the Douglas factors do
not apply in suitability appeals. According to OPM,
pursuant to 5 C.F.R. § 731.501 and this court’s decision in
Folio, the Board “may consider all aspects of a suitability
determination, except the actions taken pursuant to it.”
Petitioner Br. 17 (citing Folio, 402 F.3d at 1355); see also
5 C.F.R. § 731.501(b)(1) (“If the Board finds that one or
more of the charges brought by OPM or an agency against
the person is supported by a preponderance of the evi-
dence . . . it must affirm the suitability determination.
The Board must consider the record as a whole and make
a finding on each charge and specification in making its
decision.”). OPM maintains that: (1) no penalty mitiga-
tion factors can offset the fact that Hopper falsified docu-
ments in connection with his appointment; (2) when an
employee is found unsuitable for federal employment,
“removal must be part of the outcome;” and (3) the Board
mandate or that frustrate the policy that Congress sought
to implement.”).
ARCHULETA v. HOPPER 19
erred when it held that, “unlike penalty selections by
employing agencies, OPM’s selection of a suitability action
is not entitled to any deference.” Petitioner Br. 35.
While it is certainly true that “obtaining an appoint-
ment through material misrepresentation is a very seri-
ous offense” that may form the basis for removal, we have
said that it “involves a quantum leap of logic” to conclude
that review of the penalty is somehow barred. Devine v.
Sutermeister, 724 F.2d 1558, 1564 (Fed. Cir. 1983).
Instead, Hopper is entitled to “the same procedural safe-
guards and review as any other employee subject to an
adverse action under the CSRA, including review of the
appropriateness of the penalty imposed by the agency.”
See id.“‘Determination of an appropriate penalty is a matter
committed primarily to the sound discretion of the em-
ploying agency.’” Brook v. Corrado, 999 F.2d 523, 528
(Fed. Cir. 1993) (quoting Beard v. Gen. Servs. Admin., 801
F.2d 1318, 1322 (Fed. Cir. 1986)). This court defers to the
agency’s choice of penalty “unless the penalty exceeds the
range of permissible punishment specified by statute or
regulation, or unless the penalty is so harsh and uncon-
scionably disproportionate to the offense that it amounts
to an abuse of discretion.” Id. (citation and quotation
marks omitted). We have explained that this principle of
deference “reflects the important policy consideration that
the employing (and not the reviewing) agency is in the
best position to judge the impact of the employee miscon-
duct upon the operations of the agency . . . .” Beard, 801
F.2d at 1321.
Consistent with that rationale, the Board in Aguzie
found that deference is not warranted “when OPM, rather
than the employing agency, makes the penalty determi-
nation.” 116 M.S.P.R. at 80 (noting that the “factors
pertinent to determining the appropriateness of the
penalty under the efficiency of the service standard of 5
20 ARCHULETA v. HOPPER
U.S.C. § 7513(a) are not limited to the factors OPM may
consider under 5 C.F.R. § 731.203(c), but may also include
matters which the employing agency is in a better posi-
tion to evaluate”). Because the employing agency is better
positioned to evaluate the relevant Douglas factors,
including “the effect of the offense upon the employee’s
ability to perform at a satisfactory level and its effect
upon supervisors’ confidence,” we agree. See id. Accord-
ingly, in an appeal of an OPM-directed suitability removal
of a tenured employee, the Board must review the penalty
in light of the relevant Douglas factors. See id. In these
circumstances, OPM, as the deciding agency, bears the
burden to persuade the Board of the appropriateness of
the penalty imposed. Id.; see also Douglas, 5 M.S.P.R. at
307 (“[T]he ultimate burden is upon the agency to per-
suade the Board of the appropriateness of the penalty
imposed”).
As previously noted, the administrative judge sus-
tained OPM’s falsification charge against Hopper, but
mitigated the penalty after applying the relevant Douglas
factors. In doing so, the administrative judge noted that
OPM was present at the hearing, but refused to partici-
pate beyond challenging the decision in Aguzie. Accord-
ingly, OPM did not provide any testimony or other
evidence in support of its removal decision.
Independently applying the relevant Douglas factors,
the administrative judge found that Hopper served 15
months with the SSA, had no prior discipline, and had
received a successful performance review. Given that
Hopper’s second-line supervisor expressed continued
confidence in him and a preference for a lesser penalty,
the administrative judge found that mitigation was
appropriate. The Board found that the administrative
judge applied the appropriate analysis in mitigating
Hopper’s removal and affirmed the administrative judge’s
findings.
ARCHULETA v. HOPPER 21
We discern no error in the Board’s analysis. Because
Hopper was a tenured employee, he was entitled to appeal
to the Board under Section 7513(d), and the Board had
jurisdiction to assess whether the penalty was appropri-
ate. Where, as here, OPM presents no evidence to sup-
port the reasonableness of the penalty, we have no
alternative but to accept the Board’s assessment of it. We
therefore find no error in the Board’s decision that it had
the authority to mitigate Hopper’s suitability removal to a
letter of reprimand.
CONCLUSION
For the foregoing reasons, we conclude that: (1) under
the CSRA, a tenured employee is entitled to appeal a
suitability-based removal as an adverse action under
chapter 75; and (2) the Board was entitled to conduct an
independent review of the penalty imposed in light of the
relevant Douglas factors. Accordingly, we affirm the
Board’s decision mitigating Hopper’s suitability-based
removal to a letter of reprimand.
AFFIRMED