Archuleta v. Hopper
786 F.3d 1340
| Fed. Cir. | 2015Background
- Tony Hopper, a preference-eligible veteran, was hired by SSA and, after a background check, OPM found he made material false statements on his application and directed SSA to remove him, cancel eligibilities, and debar him for three years.
- Hopper appealed OPM’s suitability-based removal to the Merit Systems Protection Board (MSPB); while pending, MSPB decisions (Aguzie and Barnes) raised whether tenured employees can appeal OPM-directed suitability removals as adverse actions under 5 U.S.C. chapter 75.
- After Aguzie, MSPB treated Hopper’s appeal as an adverse action under chapter 75, sustained the falsification charge, but mitigated the penalty from removal to a letter of reprimand based on Douglas factors and testimony from Hopper’s SSA supervisor.
- OPM declined to fully participate in the hearing, contested MSPB’s jurisdictional framework, and argued its regulations and authority exclude suitability removals from chapter 75 review.
- The Director of OPM petitioned this court under 5 U.S.C. § 7703(d), arguing MSPB lacked jurisdiction to treat suitability-directed removals as appealable adverse actions and that OPM’s penalty selection should not be subject to Douglas-factor mitigation by the Board.
- The Federal Circuit affirmed MSPB: statutory text of the CSRA does not exempt suitability-based removals from chapter 75, tenured employees may appeal such removals, and the Board may independently assess penalty mitigation under Douglas.
Issues
| Issue | Plaintiff's Argument (OPM) | Defendant's Argument (MSPB/Hopper) | Held |
|---|---|---|---|
| Whether OPM-directed suitability removals are appealable adverse actions under chapter 75 | Suitability removals are governed by OPM regulations (5 C.F.R. pt. 731) and thus not "removals" under § 7512 | CSRA’s § 7512 defines removals appealable to MSPB and contains no exception for suitability-based removals | MSPB: § 7512 unambiguously includes suitability removals; appealable under chapter 75 |
| Whether MSPB may review and modify OPM’s associated actions (debarment, cancellation) | Those forward-looking actions are distinct and outside § 7512 coverage; OPM regulation shields them | Debarment/cancellation are part of a unitary penalty arising from the same misconduct and thus reviewable with the removal | MSPB: unitary-penalty principle applies; MSPB may review those components |
| Whether OPM regulations preempt statutory text or deserve deference (Chevron) | OPM’s regulations and historical role over suitability should control or at least be owed deference | The statutory text is clear; regulations inconsistent with § 7512 are invalid | Court: statute is unambiguous; no need to apply Chevron; inconsistent OPM regs are invalid |
| Whether MSPB can mitigate OPM-imposed penalty using Douglas factors | OPM: Douglas mitigation is inapplicable to suitability actions and OPM’s penalty selection requires deference | MSPB/Hopper: tenured employees get the same CSRA procedural protections, including penalty review under Douglas | MSPB: Board properly applied Douglas factors; OPM bears burden to justify penalty; mitigation to reprimand affirmed |
Key Cases Cited
- Brewer v. Am. Battle Monuments Comm’n, 779 F.2d 663 (Fed. Cir. 1985) (Board may review related personnel actions as a unitary penalty arising from same misconduct)
- Folio v. Dep’t of Homeland Sec., 402 F.3d 1350 (Fed. Cir. 2005) (applicant—nonemployee—challenge to suitability determination reviewed under regs, not chapter 75)
- Devine v. Sutermeister, 724 F.2d 1558 (Fed. Cir. 1983) (seriousness of obtaining appointment by misrepresentation does not bar penalty review)
- Horner v. Andrzjewski, 811 F.2d 571 (Fed. Cir. 1987) (statutory ambiguity can permit agency regulation of emergency furloughs; distinguishable on facts)
- Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999) (clear statutory language controls over contrary agency regulation)
- U.S. Postal Serv. v. Gregory, 534 U.S. 1 (U.S. 2001) (agency must prove misconduct and reasonableness of penalty; Douglas factors govern penalty review)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (framework for judicial deference to reasonable agency statutory interpretations)