Archuleta v. Hopper
773 F.3d 1289
Fed. Cir.2014Background
- Tony Hopper, a preference-eligible veteran, served ~15 months as a Contract Representative at SSA; OPM’s background check found false statements on his application and directed SSA to remove him, cancel reinstatement eligibility, and debar him for three years.
- OPM notified Hopper of appeal rights under its suitability regulations (5 C.F.R. part 731); SSA removed Hopper effective July 31, 2009.
- Hopper appealed to the Merit Systems Protection Board (MSPB). While pending, the MSPB in Aguzie held that tenured employees (those meeting 5 U.S.C. § 7511) may appeal OPM-directed removals as adverse actions under 5 U.S.C. chapter 75.
- After Aguzie, the administrative judge sustained the falsification charge but independently applied the Douglas mitigation factors and mitigated removal to a letter of reprimand based on Hopper’s short service, good performance, no prior discipline, and supervisor testimony favoring a lesser penalty.
- OPM declined to meaningfully contest the penalty at hearing (arguing instead that Aguzie was wrong) and petitioned the full MSPB and then this court under 5 U.S.C. § 7703(d) claiming the Board lacked jurisdiction to treat suitability removals as chapter 75 adverse actions.
- The Federal Circuit affirmed: (1) the CSRA permits tenured employees to appeal suitability-based removals under chapter 75 because § 7512 lists exceptions but does not exclude suitability removals; and (2) the MSPB correctly reviewed and mitigated the penalty using Douglas factors.
Issues
| Issue | Petitioner (OPM) Argument | Respondent (Hopper/MSPB) Argument | Held |
|---|---|---|---|
| Whether OPM-directed suitability removals of tenured employees are appealable to the MSPB under chapter 75 | Suitability removals should be governed exclusively by OPM regulations (5 C.F.R. part 731); such removals are not "removals" under § 7512 and thus not subject to chapter 75 review | CSRA defines who is an "employee" and § 7512 lists exceptions but does not exempt suitability removals; tenured employees may appeal removals under § 7513(d) | MSPB has jurisdiction: suitability-based removals of tenured employees are appealable under chapter 75 |
| Whether OPM’s regulations (5 C.F.R. §§ 731.203(f), 752.401(b)(10)) can override the CSRA and prevent MSPB review | OPM’s regulations exclude part 731 actions from part 752/chapter 75 coverage and should control absent clear statutory ambiguity | Statute is unambiguous; agency regulations cannot supplant clear statutory text; conflicting regs are invalid to the extent of inconsistency | Regulations cannot override clear statutory language; OPM’s contrary regulations are invalid insofar as they conflict with § 7512 |
| Whether the MSPB may review and mitigate the penalty for an OPM-directed suitability removal | Penalty selection by OPM in suitability cases is not subject to Douglas mitigation; removal is an inherent consequence of finding someone unsuitable | Tenured employees are entitled to the same procedural protections and penalty review in removal appeals under chapter 75; the Board should apply Douglas factors and may mitigate | MSPB may review penalty; where OPM makes the penalty determination for a tenured employee, the Board must apply Douglas factors and OPM bears burden to justify penalty |
| Whether deference (Chevron) requires deferring to OPM’s interpretation that suitability removals fall outside chapter 75 | If § 7512 is ambiguous, defer to OPM’s reasonable interpretation excluding suitability removals | Statutory text is unambiguous; no need to apply Chevron; if ambiguous, Board’s interpretation would also merit deference | Court found the statute unambiguous and did not reach Chevron deference; it applied the statute as written |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- United States v. Smith, 499 U.S. 160 (1991) (expressio unius est exclusio alterius canon when statutes enumerate exceptions)
- Ventas, Inc. v. United States, 381 F.3d 1156 (2004) (presumption that listed exceptions are exclusive)
- Van Wersch v. Department of Health & Human Services, 197 F.3d 1144 (Fed. Cir. 1999) (clear statutory language controls over agency regulation)
- Folio v. Department of Homeland Security, 402 F.3d 1350 (Fed. Cir. 2005) (distinguishing applicant rescission suits from removal appeals by tenured employees)
- U.S. Postal Service v. Gregory, 534 U.S. 1 (2001) (agency bears burden to prove misconduct and reasonableness of penalty in Board review)
- Brook v. Corrado, 999 F.2d 523 (Fed. Cir. 1993) (deference to agency penalty decisions unless disproportionate)
- Beard v. General Services Administration, 801 F.2d 1318 (Fed. Cir. 1986) (rationale for deference to employing agency on penalty selection)
- Devine v. Sutermeister, 724 F.2d 1558 (Fed. Cir. 1983) (rejecting absolute bar to penalty mitigation when appointment was obtained by misrepresentation)