Smith v. Office of Personnel Management

13 F. App'x 935
CourtCourt of Appeals for the Federal Circuit
DecidedApril 6, 2001
DocketNo. 01-3015
StatusPublished

This text of 13 F. App'x 935 (Smith v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Office of Personnel Management, 13 F. App'x 935 (Fed. Cir. 2001).

Opinion

DECISION

PER CURIAM.

Michael C. Smith petitions for review of the final decision of the Merit Systems Protection Board affirming the suitability determination of the Office of Personnel Management (“OPM”), which rated him ineligible for the position of Aircraft Electrical Worker, canceled any eligibilities that he had obtained, and debarred him from any position in the competitive federal service until September 23, 2002. Smith v. OPM, No. AT-0731-00-0033-I-1, 2000 WL 1337345 (M.S.P.B. Aug.16, 2000) (final order). Because Smith has not shown that the Board erred, we affirm.

DISCUSSION

On October 30, 1997, Mr. Smith applied for the position of Aircraft Electrical Worker at Robins Air Force Base (“RAFB”) in Georgia. On May 6, 1998, [936]*936Smith was certified and rated eligible for that position. Thereafter, the employment office at RAFB objected to Smith’s eligibility because he had been fired from his previous position for excessive absence, was arrested for possession of a firearm, was on probation for driving under the influence (“DUI”), and had child support problems. After conducting an investigation, OPM issued a final decision on September 27, 1999. OPM concluded that Smith was unsuitable for federal employment based on his extensive criminal history, failure to pay child support and satisfy other financial obligations, and intentional falsification of his Standard Form 171 (“SF-171”) employment application. Accordingly, OPM rated Smith ineligible, canceled any eligibilities that he had obtained from pending applications, and debarred him from any position in the competitive federal service until September 23, 2002.

On October 12, 1999, Smith appealed OPM’s final decision to the Board. Smith v. OPM, No. AT-0731-00-0033-I-1, slip op. at 1 (M.S.P.B. Jan.24, 2000) (initial decision). After reviewing the evidence, the Administrative Judge (“AJ”) affirmed OPM’s suitability determination based on the charges of: (1) criminal or dishonest conduct relating to the employee’s service in the position or the service of other employees; and (2) intentional false statement or deception in examination or appointment. Id. at 4-5; 5 C.F.R. § 731.202(b)(2), (3) (2000).

Smith appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b) (2000). Smith timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Cheeseman v. OPM, 791 F.2d 138, 140 (Fed.Cir.1986).

On appeal, Smith argues that the AJ failed to take into account the fact that the employment office at RAFB committed harmful error by not acting on his application until after he sought a “Congressional Inquiry.” Smith alleges that Jacqueline Y. Moses, the Director of OPM’s Atlanta Service Center, engaged in a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(8)(A) and (9)(A) in retaliation for his “Congressional Inquiry.”

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