Court of Appeals for the Federal CircuitIn a decision issued yesterday, the U.S. Court of Appeals for the Federal Circuit rejected OPM‘s attempt to prevent the Merit Systems Protection Board from reviewing and rescinding a termination as an adverse action rather than under OPM’s suitability regulations. The case involved a SSA employee whose background investigation 15 months after he was appointed raised “a serious question” about his suitability for federal employment.

OPM concluded that he lied on his application when answering no to the question about whether he had been fired, or quit after being told he would be fired, from previous jobs. OPM also asserted he failed to list all employment during the last five years. OPM ordered the Social Security Administration to fire him, declare him ineligible for reinstatement, and bar him from federal employment for three years.

OPM said that any appeal would be need to be processed under its suitability regulations, 5 C.F.R. part 731. The Merit Systems Protection Board decided that since the appellant, a veteran, met the definition of “employee” under civil service law, he was entitled to the greater protections allowed under adverse action rules (found in Title V, Chapter 75). As a result of applying those protections, the Board mitigated the penalty from a removal to a letter of reprimand. Had the suitability regulations been applied, the Board would have lacked the authority to impose a lesser punishment since it upheld the charges.

The Court found the fact that OPM’s regulations excluded suitability actions from the Chapter 75 protections unimportant, holding that OPM regulations must give way to the unambiguous statutory language that Congress had written about who had what appeal rights in the event of a termination.

RESULT: If you are proposed for termination based on a suitability finding and can meet the definition of “employee” because of years of service (or a combination of veterans status plus a year of service) you now may be able to fight the proposal under adverse action rules and argue that a penalty lesser than termination should be imposed if the charges are upheld.

As “the firm for feds”℠​ this is the type of case we handle. You may reach attorney David Schleicher at (800) 892-1506 ext. 1 for a free initial consultation.