Circuit Says OPM Dropped the Ball on Suitability, MSPB Can Now Say 'Hire Liars'

By on June 17, 2015 in Court Cases, Current Events with 22 Comments

I can’t remember the comedian who said it but do remember the quote to the effect that ambiguity may be defined as having your sixteen year old daughter show up at 7AM after being out all night and having in her hand a bible which you find out is a Gideon.

Almost every Agency hearing advocate I’ve ever met has privately expressed (they’re Feds after all) their disdain for the U.S. Office of Personnel Management (OPM)’s frequently cavalier and even more often dismissive attitude when Agencies ask for help defending one of OPM’s own policies. While a Navy hearing rep, I had an OPMer tell me that serving as a witness in an Agency case even when an OPM regulation was under challenge was beneath them, that OPM made policy and it was an Agency’s job to make it work.

In a recent case, Archuleta v. Hopper, a panel of D.C. Circuit Court Judges lambasted (literally) OPM for asking for a three judge panel to review a single judge’s ruling without having a case to hang its legal hat on.  If it wasn’t for the effect of OPM’s botched case on the rest of the Federal Service, one might call it justice.  BTW, if you think I’m being hard on OPM, read the decision.  The Court stopped just short of calling OPM’s case ridiculous.

What’s Going On?

Based on Executive Order and its own regulations, OPM may determine that an individual is not fit (suitable) for Federal service based on pre-employment bad behavior or for, somewhat commonly, lying on an application for employment or other employment document (see below). These situations arise when OPM is conducting a background investigation or an Agency with delegated OPM hiring authority tells OPM that such bad deeds have occurred or acts on them itself.  In the past, when OPM believed someone was unsuitable for Federal service, it either ruled that way or told the Agency to be rid of the bad actor.  This has been more or less the system since the late 1940s.  Here is OPM’s list of factors that might render one unsuitable:

  • Misconduct or negligence in employment
  • Criminal or dishonest conduct
  • Material, intentional false statement, or deception or fraud in examination or appointment*
  • Refusal to furnish testimony as required by 5 CFR 5.4* (Only OPM can cite this factor)
  • Alcohol abuse without evidence of substantial rehabilitation
  • Illegal use of narcotics, drugs or other controlled substances without evidence of substantial rehabilitation
  • Knowing and willful engagement in acts or activities designed to overthrow the United States Government by force
  • Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question

What’s most important is that OPM has maintained over the years that MSPB has no jurisdiction over its (OPM’s) suitability adjudications.  The case cited above, Archuletta v. Hopper, if it stands, changes all that.  The court found that once hired and past probation, an individual becomes “tenured” and may appeal a removal for misconduct, past and present, to the Merit Systems Protection Board (MSPB).  No big deal right? OPM or an Agency with delegated authority finds out the person was some sort of miscreant and either doesn’t hire the person or terminates (correct term) his/her employment during probation.  No problem so far, right?  Except that, if MSPB is right and it has jurisdiction of tenured employees, it (the Board) will apply a statutory standard i.e., “for such cause as promotes the efficiency of the service” and not necessarily use any of OPM’s bases listed above for suitability.

What’s the Big Deal?

The above mess raises a number of issues. Among them:

  • If OPM uses one standard for suitability and MSPB another, does it mean one or another of the people involved isn’t getting equal protection under law?
  • Up to now, suitability determinations were based on a regulatory policy.  Does this case mean that MSPB will supplant OPM as the regulator of suitability adjudications?
  • If MSPB sets its own criteria (likely), can applicants and probationers appeal to a court claiming that MSPB’s criteria govern?
  • Will OPM pressure investigators and Agencies to get their act together before a hired individual completes probation? If so, will that make for bad investigations?
  • Will OPM take this drubbing and seek legislative cover or seek a Supreme Court review?  (According to the three judge panel, they better have more and better lawyers; more and better facts; and/or more and better arguments to take this mess forward).

Is There More to This Than There Appears?

In 2014, the Supreme Court smacked down MSPB’s attempts to assert jurisdiction in the area of security clearances.  Archuletta v. Hopper isn’t the first time MSPB tried to get its nose under the suitability tent.  OPM may have been asleep at the switch in an earlier case on the same issue. In that case, known as Aguzie v. OPM, the Board found that it had jurisdiction and ordered a remand to its regional offices to conduct a factual hearing.  OPM asked for reconsideration, was denied but apparently didn’t appeal to circuit.

It appears, at least to me that the current MSPB is on a mission to arrogate jurisdiction in Federal employment to itself.  Suitability and security determinations are very closely related and much freedom is given Agencies to try to head off bad actors before they get into government or get a sensitive position.  The Supreme Court upheld an Agency Head’s authority to unilaterally withhold a security clearance providing the person involved was accorded due process.

It will appear to some readers that the Board’s incursion into suitability reflects a similar mindset to its security clearance challenge, that is, that it rather than OPM should set the standard.  In Hopper, OPM’s determination was based on an investigation that the person lied or misrepresented facts that would have made him unsuitable for Federal employment in an employment document.  The Board, on the other hand, found that those misstatements or omissions were trumped by his 15 months of acceptable service once employed.  It seems to this writer that Board was saying, in essence, that the pre-employment behavior was irrelevant.  The Board’s ruling can be easily read to say that once one manages to get through probation, all is forgiven.  Remember, nobody at the Agency knew when they hired this guy that he had lied to get the job and does the fact that his supervisor liked him mean the Agency trust concerns are irrelevant.

Lest you think I’m being too hard on OPM here, the circuit decision reads as follows:

“During the hearing, representatives for OPM gave an opening statement criticizing the Aguzie decision but otherwise refused to participate. Specifically, OPM’s representative stated that: (1) “OPM is simply incapable of adjudicating suitability actions under chapter 75;” and (2) OPM considered suitability factors in connection with this case, but did not consider mitigating or aggravating factors which are relevant under chapter 75.”

Is that the best the Federal government’s human resources policy maker can do?

The Court went on to lecture OPM on its options:

“While OPM strongly urges that its authority should not be circumscribed, it is not irrational to think Congress intended to do just that; giving broad authority to OPM unless and until an individual attains “employee” status. To the extent OPM believes that § 7512 should include an exception for actions taken against tenured employees based on suitability determinations, it must make its case to Congress rather than this court. If Congress determines that an individual in Hopper’s position should not have the right to appeal a negative suitability decision as an adverse action under chapter 75, it can amend the CSRA to include suitability actions in the list of those matters not subject to appeal.”

This decision has handed Agencies a particularly smelly mess that OPM can alleviate if it decides to do so.  Human Recourse managers have told me that OPM doesn’t release investigation findings and is otherwise somewhat uncooperative in dealing with Agencies on suitability determinations.  This has required Agencies to do an independent investigation in order to take an action.   The question is whether Agency Human Resources Directors or CHCOs will pressure OPM to be more cooperative and to do as the court decision suggests.  I say that because inertia is often an OPM trait.  Lots of folks are watching you on this, OPM.  Will you step up to the plate?

If anyone on the Hill is reading this, it is a significant matter and with this decision an Agency like MSPB can undermine all Agencies ability to screen applicants for pre-employment misconduct drastically unless fixed.  This is easily worth more Hill time than messing around with DVA’s conduct issues which can be fixed with a good administrative investigation, following sound advice from experienced ER practitioners and a little management guts.

Many thanks to Bob Dietrich for his help with this article.  As always, any view expressed is mine alone.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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