Full Appeals Court Clears Way For Expansion of MSPB Review In Suitability Cases

Readers may recall that the appeals court a few months ago upheld a significant expansion by the Merit Systems Protection Board (MSPB) of its jurisdiction over suitability appeals. The Office of Personnel Management (OPM) fought this expansion by requesting that the full Court of Appeals for the Federal Circuit re-hear the case “en banc.”

The appeals court has now responded in what is a victory for the Board and a disappointment for OPM.

The court denied OPM’s petition, which leaves them with only recourse to the Supreme Court. In doing so, however, the court referred OPM’s petition to the original three judge panel that decided Archuletta to be treated as a request for reconsideration. The original panel issued an order the same day OPM’s petition was denied by the full court, reopening the case for reasons defined as:

“OPM’s petition for rehearing is granted for the limited purpose of clarifying that the Merit Systems Protection Board had jurisdiction to review Respondent Tony D. Hopper’s debarment and cancellation of eligibilities as part of a unified penalty arising from the same set of circumstances as his removal. In all other respects, the petition is denied.”

The panel then reissued the revised decision (included below) reflecting this clarification.

This case as originally issued and as revised marks a departure from a hands off approach long taken by MSPB in suitability based adverse actions. The appeals court’s decision in effect okays the new MSPB approach and makes life more difficult for agencies when they confront security clearance denials for employees required to have clearances for their positions.

Archuleta v. Hopper (2013-3177)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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