2022 MSPB 5
MSPB2022Background:
- Odoh was fired by a private employer in Feb 2015 for sleeping on duty, then appointed to a federal Recreation Specialist position in May 2015.
- He signed an OF-306 in March (electronically) and again in May (hardcopy) answering “No” to whether he had been fired from any job in the last 5 years.
- OPM investigated and issued a negative suitability determination in March 2016, citing two charges (misconduct/negligence and material, intentional false statement), leading to separation and debarment actions.
- The administrative judge sustained only the false-statement charge (finding Odoh intentionally misrepresented his firing) and remanded to OPM to decide whether the personnel actions remained appropriate under 5 C.F.R. § 731.501(b)(2).
- Odoh claimed he misunderstood the OF-306 question, thinking it referred only to federal employment; he also argued the Board should treat the matter as a Chapter 75 adverse action to mitigate the penalty.
- The Board denied review of the credibility findings, held the false-statement charge was sustained, and remanded to OPM for disposition of the penalty; it rejected Odoh’s Chapter 75 mitigation argument based on statutory changes.
Issues:
| Issue | Odoh's Argument | OPM's Argument | Held |
|---|---|---|---|
| Whether Odoh knowingly made a material, intentional false statement on the OF-306 (intent element). | Odoh: He reasonably misunderstood the question as asking only about federal jobs; no intent to deceive. | OPM: The question plainly asked about "any job"; answering "No" concealed a recent firing to secure employment, supporting an inference of intent. | Held: Board affirmed the AJ—Odoh’s interpretation was implausible; intent to deceive was found and the falsification charge sustained. |
| Whether the Board should review and mitigate the removal as a Chapter 75 adverse action. | Odoh: The Board should treat this as a Chapter 75 case and mitigate the penalty. | OPM: Suitability actions by OPM are excluded from Chapter 75 review under the NDAA amendment; Board lacks authority to adjudicate penalty. | Held: Board lacks authority to adjudicate or modify the ultimate action under Chapter 75 for OPM suitability determinations; matter remanded to OPM to determine appropriateness of actions based on the sustained charge. |
Key Cases Cited
- Leatherbury v. Department of the Army, 524 F.3d 1293 (Fed. Cir. 2008) (intent to falsify requires intent to deceive for private material gain; reasonable good-faith belief negates deceptive intent)
- Boo v. Department of Homeland Security, 122 M.S.P.R. 100 (MSPB 2014) (intent may be inferred from circumstances; Board must consider totality of circumstances and plausible explanations)
- Hawes v. Office of Personnel Management, 122 M.S.P.R. 341 (MSPB 2015) (if at least one charge is proven Board must affirm; if fewer than all charges are sustained, remand to OPM to reassess action)
- Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015) (pre-NDAA: tenured employees could seek Chapter 75 review of agency action stemming from OPM suitability determinations)
- Folio v. Department of Homeland Security, 402 F.3d 1350 (Fed. Cir. 2005) (Board's jurisdiction over OPM suitability determinations is limited and does not include reviewing or modifying OPM-imposed actions)