Holland v. Merit Sys. Prot. Bd., 2019-1388

Decision Date06 January 2020
Docket Number2019-1388
PartiesCAMERON L. HOLLAND, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent DEPARTMENT OF JUSTICE, Intervenor
CourtU.S. Court of Appeals — Federal Circuit

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. DE-0752-18-0332-I-1.

LOUIS FRANCIS ROBBIO, Law Office of Louis F. Robbio, North Port, FL, argued for petitioner.

JEFFREY GAUGER, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by KATHERINE MICHELLE SMITH, TRISTAN LEAVITT.

REBECCA SARAH KRUSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor. Also represented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.

Before MOORE, REYNA, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.

Cameron Holland worked as a Special Agent in the Drug Enforcement Administration (DEA), a part of the united States Department of Justice, under an excepted-service appointment. Just over a year into his employment, the DEA terminated Mr. Holland from his position, without having given him notice of the proposed basis of termination or a pre-decision opportunity to provide the deciding official a response. Mr. Holland appealed to the Merit Systems Protection Board, seeking review of the termination. But the Board dismissed the appeal, concluding that the request for review is not within any grant of jurisdiction to the Board. We agree that the Board lacks jurisdiction, and we therefore affirm, leaving the termination unreviewed.

I

Before he began working for the DEA in 2017, Mr. Holland served as a local police officer. Between 2009 and 2015, his police department employer issued him three letters of corrective action and three letters of disciplinary action. In May 2016, when Mr. Holland applied to be a special agent with the DEA, he completed an electronic questionnaire as part of the application. The questionnaire asked whether, in the last seven years, he had "received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy." J.A. 159. Mr. Holland responded "[n]o." Id.

On February 9, 2017, the DEA sent Mr. Holland a letter indicating that he had qualified for an interim clearance and offering him a position as a special agent. The letter indicated that Mr. Holland could begin working before the Office of Personnel Management (OPM) completed his background investigation but that he would be removed from the position if "[o]nce the background investigation ha[d] been received and reviewed . . . any previously unknown or discrepant information [wa]s uncovered that would have had a negative impact on [his] selection." J.A. 143. Mr. Holland accepted the offer.

On May 14, 2017, Mr. Holland began work as a Special Agent in the DEA "serving under an excepted service appointment" that "may be converted to a career appointment in not less than three years and not more than four years." J.A. 137. Mr. Holland's appointment was also subject to a two-year probationary period.

OPM completed Mr. Holland's background investigation on January 3, 2018. While performing the investigation, the OPM investigator learned of the corrective and disciplinary actions taken against Mr. Holland while he was employed as a police officer. In the report based on the "Enhanced Subject Interview," the investigator wrote that Mr. Holland "did not list all of his employment disciplinary actions because he asked a friend if he should list all of the contact cards/disciplinary action[s] and [the] friend told him he was not required to list [them]." J.A. 117. The investigator wrote that Mr. Holland "was not trying to hide" the disciplinary actions, which were "common knowledge." Id.

On May 31, 2018, the DEA terminated Mr. Holland from his position. There had been no notice of proposed removal or an opportunity for Mr. Holland to submit to the deciding official a response to such a proposal. Citing as authority 5 U.S.C. chapter 23 (§§ 2301-2306), the termination letter states that the decision was based on Mr. Holland's "failure to provide complete and truthful information in [his] background investigation." J.A. 107. The DEA also completed OPM's Standard Forms 50 and 52, which show that Mr. Holland was terminated during the probation/trial period of his excepted-service employment. The initial Standard Forms 50 and 52, approved June 5, 2018, cited legal authority for the termination, 5 C.F.R. § 315.805, different from the authority cited in the termination letter.

On June 30, 2018, Mr. Holland appealed his termination to the Board. In early July, the administrative judge assigned to the matter issued orders calling for submissions on the issue of Board jurisdiction. On July 26, 2018, the Department of Justice submitted a letter seeking dismissal of the appeal for lack of jurisdiction. Attached to the letter was a replacement version of Standard Form 52, approved July 26, 2018, changing the authority citation from 5 C.F.R. § 315.805 to 5 U.S.C. chapter 23, consistent with the termination letter.

On October 5, 2018, an administrative judge issued an initial decision holding that the Board lacks jurisdiction to hear Mr. Holland's appeal. The administrative judge explained that Mr. Holland was not an "employee" under 5 U.S.C. § 7511(a)(1) and that the Board lacked jurisdiction over "constructive suitability determinations." Holland v. Dep't of Justice, 2018 WL 4914095 (M.S.P.B. Oct. 5, 2018); J.A. 3, 5. The administrative judge also determined that the Board has no jurisdiction over Mr. Holland's claims that he was subject to a prohibited personnel practice where, as here, there was no otherwise-appealable action. J.A. 5. The initial decision became the final Board decision (which we hereafter call it) when the time for full Board review passed without Mr. Holland seeking such review.

Mr. Holland timely appealed to this court. Although before the Board he made reference to a discrimination allegation, he has dropped that allegation. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

We affirm the Board's findings or conclusions unless they are "(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). "The Board's jurisdiction is not plenary, but is limited to adverse personnel actions expressly made appealable to it by law, rule, or regulation." Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999) (citing 5 U.S.C. § 7701(a)). We decide de novo whether the Board has jurisdiction, while accepting Board findings of fact if they are supported by substantial evidence. Parrott v. M.S.P.B., 519 F.3d 1328, 1334 (Fed. Cir. 2008); Johnston v. M.S.P.B., 518 F.3d 905, 909 (Fed. Cir. 2008).

Mr. Holland advances several alternative bases on which, he contends, the Board has jurisdiction. We address each basis in turn. We then address his due process claim.

A

Mr. Holland contends that the Board has jurisdiction over his appeal under 5 C.F.R. part 731 because his termination was a "suitability action." We disagree, concluding that the DEA did not actually find him unsuitable for the position. The termination decision does not on its face make, and should not be understood as making, such a finding.

A "suitability determination" is "a decision by OPM or an agency with delegated authority that a person is suitable or is not suitable for employment in covered positions in the Federal Government or a specific Federal agency." 5 C.F.R. § 731.101(b). As relevant here, a "covered position" is "a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service." Id. In making a suitability determination, OPM or an agency with delegated authority must rest its determination on a ground specified in an exclusive list of permissible bases, of which the only one placed in issue before this court is that the individual involved made a "[m]aterial, intentional false statement, or deception or fraud in examination or appointment." § 731.202(b)(3).

If a suitability determination is made, OPM or an agency with delegated authority may take a suitability action against that person. § 731.203(c). A "suitability action" is a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, or a debarment, § 731.203(a), and "may be taken only by OPM or an agency with delegated authority," § 731.101(b). A person against whom an agency has taken a suitability action may "appeal the action to the . . . Board." § 731.501(a).

It is undisputed that Mr. Holland was in a "covered position," but appealability would require more—namely, that a suitability action was taken against him. § 731.501(a). But nowhere did the DEA characterize its termination of Mr. Holland as a suitability action or cite the suitability regulations of 5 C.F.R. part 731. The DEA instead cited 5 U.S.C. chapter 23 as its legal authority (and, initially, another regulation unrelated to suitability). Further, in a declaration filed before the Board, the DEA's Section Chief for the Suitability Section of Human Resources stated that the "DEA did not perform a suitability review of Cameron Holland or make a negative suitability determination of Cameron Holland" and that OPM "did not issue a negative suitability determination of Cameron Holland." J.A. 286-87.

Nevertheless, Mr. Holland argues that his termination was effectively a suitability action because it rested on a determination that he had made a "[m]aterial, intentional false statement, or deception or fraud in examination or appointment." § 731.202(b)(3). We reject Mr. Holland's recharacterization of his termination.

Section 731.202(...

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