The AFGE General Counsel’s Office won a major legal victory this week that reaffirms the adverse action appeal rights of non-probationary federal employees who are removed by their employing agency at the direction of the U.S. Office of Personnel Management (OPM). In the case of Archuleta v. Hopper, the U.S. Court of Appeals for the Federal Circuit ruled that when OPM directs an employing agency to remove a tenured federal employee based on a negative suitability determination made by OPM, that employee has a statutory right to appeal his removal to the U.S. Merit Systems Protection Board (MSPB) as an ordinary adverse action (i.e., a removal), and the MSPB has the power to review the appeal and apply the Douglas factors, as appropriate, to mitigate the penalty.
The Social Security Administration (SSA) hired Mr. Hopper in 2008. Fifteen months later, well past his probationary period, OPM directed SSA to remove him, alleging that he was unsuitable for federal employment. Although challenges to OPM-directed suitability determinations were previously controlled by OPM’s suitability regulations, which heavily restricted employees’ rights of appeal, Mr. Hopper appealed his removal with the assistance of Local 3984 President Jimmy Botts. Mr. Hopper won before the MSPB but OPM appealed that decision to court.
The Federal Circuit’s unequivocal ruling now cements the MSPB’s correction of OPM’s mistake. “This is a major victory for AFGE, for our members, and for every federal employee,” said AFGE President J. David Cox Sr. “The Civil Service Reform Act is crystal clear that tenured employees have a statutory right to appeal adverse actions that result in their termination.” OPM has between 45-60 days to appeal, and AFGE will be there to oppose them if they do.