Kaplan v. Hopper , 533 F. App'x 997 ( 2013 )

Case: 13-145 Document: 18 Page: 1 Filed: 09/18/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
Elaine D. Kaplan, ACTING DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT,
Petitioner,
v.
TONY D. HOPPER,
Respondent,
AND
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
Miscellaneous Docket No. 145
______________________
On Petition for Permission to Appeal pursuant to 28
U.S.C. § 1292(b) from the Merit Systems Protection Board
in No. CH0731090798-I-3.
______________________
ON PETITION
______________________
Before LOURIE, O’MALLEY, and REYNA Circuit Judges.
O’MALLEY, Circuit Judge.
ORDER
Case: 13-145 Document: 18 Page: 2 Filed: 09/18/2013
2 KAPLAN v. HOPPER
The Director of the Office of Personnel Management
(“OPM”) petitions for review of a final order of the Merit
Systems Protection Board (“Board”) pursuant to
5 U.S.C. § 7703(d). Tony D. Hopper opposes. The Direc-
tor moves unopposed for an extension of time to file his
reply and replies.
Mr. Hopper was hired by the Social Security Admin-
istration (“SSA”) subject to a favorable suitability deter-
mination. OPM’s investigation revealed that Mr. Hopper
intentionally falsified his application for employment by
claiming that he had never been terminated from a previ-
ous position when, in fact, he had been fired twice. Fif-
teen months after Mr. Hopper began work, OPM
determined that he was unsuitable for Federal employ-
ment. OPM directed SSA to remove Mr. Hopper and
barred him from Federal employment for three years.
Mr. Hopper appealed to the Board. Relying upon
Aguzie v. Office of Personnel Management, the adminis-
trative judge concluded that the scope of the Board’s
review is not government by OPM’s suitability regulations
but instead by Chapter 75 of Title 5. Pursuant to Chapter
75, an “agency may take an action covered by this sub-
chapter against an employee only for such cause as will
promote the efficiency of the service,” 5 U.S.C. § 75l3(a),
and the Board may review the factual basis for the action
and mitigate the action. 5 U.S.C. §§ 770l(b)(3), (c),
7513(d). One of the covered adverse actions is a “remov-
al.” 5 U.S.C. § 7512(1).
Applying Chapter 75, the administrative judge sus-
tained the charge of “material, intentional false state-
ment, or deception or fraud in examination or
appointment,” finding that Mr. Hopper knowingly sup-
plied incorrect information on his employment application
with the intention of deceiving or defrauding the agency.
The administrative judge also noted Mr. Hopper’s SSA
supervisor’s testimony that he would not have removed
Case: 13-145 Document: 18 Page: 3 Filed: 09/18/2013
KAPLAN v. HOPPER 3
Mr. Hopper for his falsification. As a result, the adminis-
trative judge mitigated Mr. Hopper's removal, cancella-
tion eligibilities, and three-year bar to a letter of
reprimand, citing the Board’s purported authority over
Chapter 75 “removals.”
OPM petitioned the full Board for review, and the Di-
rector of OPM intervened. The Board denied OPM's
petition and affirmed the decision of the administrative
judge. Reaffirming Aguzie, the Board concluded that it is
not bound by OPM's suitability regulations, which treat
suitability actions by OPM as distinct from adverse
actions initiated by agencies and prohibit Board review of
the reasonableness of OPM's selected suitability action if
the Board has sustained OPM's charges. See
5 C.F.R. §§ 731.203(t), 731.501, 752.401(b)(10). The Board
concluded that, when the suitability action is a directed
removal, the Board may review it as an adverse action
pursuant to Chapter 75 of Title 5. Finding no ambiguity
in Chapter 75, the Board held that OPM's regulations are
contrary to the plain language of the statute. Additional-
ly, the Board affirmed the administrative judge’s conclu-
sion that the Board possessed authority to mitigate not
only Mr. Hopper’s removal, but also cancellation of his
employment eligibilities and his federal service bar as a
“unified penalty.” This petition for review followed.
Pursuant to 5 U.S.C. § 7703(d), OPM may 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. OPM
asserts that the Board’s invalidating and enjoining OPM
from enforcing its suitability regulations is contrary to
this court’s precedent recognizing OPM’s authority to
define the scope of review in suitability cases, usurps
OPM’s Presidentially-mandated authority, compromises
government-wide uniformity and fairness, and threatens
Case: 13-145 Document: 18 Page: 4 Filed: 09/18/2013
4 KAPLAN v. HOPPER
the government’s ability to safeguard the public trust and
to protect the integrity of the civil service.
This court must independently determine whether an
exercise of our jurisdiction is warranted. Devine v.
Sutermeister, 724 F.2d 1558, 1562 (Fed. Cir. 1983). When
the interpretation of a statutory or regulatory provision is
at issue, it is particularly appropriate to grant an OPM
petition for review. See, e.g., King v. Hillen, 21 F.3d 1572(Fed. Cir. 1994); Brook v. Corrado, 999 F.2d 523 (Fed. Cir.
1993); Horner v. Schuck, 843 F.2d 1368 (Fed. Cir. 1988).
Here, the Board determined that an OPM-directed suita-
bility action is subject to full review under Chapter 75 of
Title 5, including review and modification of the ultimate
action taken upon a determination that an employee is
not suitable for Federal employment. We conclude that
OPM has shown the necessary impact and that our juris-
diction is warranted.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion for an extension of time is granted.
(2) OPM’s petition is granted.
(3) The revised official caption is reflected in the or-
der.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk
s25