Archuleta v. Hopper

Citation773 F.3d 1289
Decision Date08 December 2014
Docket NumberNo. 2013–3177.,2013–3177.
PartiesKatherine ARCHULETA, Director, Office of Personnel Management, Petitioner, v. Tony D. HOPPER, Respondent, and Merit Systems Protection Board, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Allison Kidd–Miller, Senior Trial Counsel, Commercial 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 Counsel, Kathie Ann Whipple, Deputy General Counsel, Steven E. Abow, Assistant General Counsel and Robert J. Girouard, Senior Counsel, Office of Personnel Management, 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 Treasury 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.

Opinion

O'MALLEY, Circuit Judge.

Katherine Archuleta, Director of the Office of Personnel 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 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 Fed.Appx. 997, 999 (Fed.Cir.2013). Because 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 mitigating 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, Kentucky. The SSA subsequently requested that OPM conduct a background investigation.

Roughly 15 months after his appointment, OPM informed Hopper that it found “a serious question” regarding his suitability for federal employment due to false statements he made in connection with his application and appointment. When asked on his application whether, 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 Hopper had been fired from a forklift driver position in October 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 response 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, intentional false statement, or deception or fraud in examination 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 honest 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 federal 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 statements 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 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 depending 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 suitability 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 presented testimony from his second-line supervisor at the SSA: Assistant District Manager Sidney Egleston. In relevant part, Egleston “expressed continued confidence in [Hopper] 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.

In an Initial Decision dated March 8, 2012, the administrative judge explained that, although this case originated as a suitability action, because Hopper qualifies 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 applicable standard. See Douglas v. Veterans Admin., 5 MSPB 313, 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 administrative 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 removal to a letter of reprimand.

OPM petitioned the full Board for review, and the Director 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 preference eligible veteran. Because OPM did not object to any of the administrative judge's factual findings,...

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