 Office of Personnel Management Petitions for Reconsideration
 of Non-Precedentiai Merit Systems Protection Board Decisions

The Director o f the Office o f Personnel Management is authorized to petition the M erit Systems Protec­
   tion Board to reconsider a non-precedential decision o f the Board only if the Director concludes
   that such decision has a substantial im pact on a civil service law, rule, regulation, or policy
   directive.

                                                                                                    September 13, 1999

                       M e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l
                         F e d e r a l R e t ir e m e n t T h r if t In v e s t m e n t B o a r d


  This responds to your request for our opinion concerning petitions for
reconsideration of certain “ non-precedential” decisions issued by presiding offi­
cials of the Merit Systems Protection Board (“ MSPB” ). These decisions dispose
of personnel disputes without publication of an opinion or statement explaining
the legal basis of the decisions. See Letter for Mr. Randolph Moss, Acting Assist­
ant Attorney General, Office of Legal Counsel, from John J. O ’Meara, General
Counsel, Federal Retirement Thrift Investment Board (Nov. 6, 1998) ( “ FRTIB
Letter” ). As explained in your letter, the Office o f Personnel Management
(“ OPM ” ) has taken the position that it is legally barred from petitioning for
reconsideration o f such decisions, which effectively precludes the possibility of
appealing such decisions to the U.S. Court of Appeals for the Federal Circuit.
Your office disagrees with OPM’s position on this issue.
  Following our consideration of submissions from your office and OPM ,1 we
conclude that (1) under the governing provisions of 5 U.S.C.A. § 7703(d) (West
Supp. 1999) and 5 C.F.R.§ 1201.119(a)(2) (1997), OPM may petition for
reconsideration of an MSPB decision only if the OPM Director determines, in
her discretion, that such decision will have a substantial impact on a civil service
law, rule, regulation, or policy directive; (2) the Director has statutory authority
to petition for reconsideration of non-precedential MSPB decisions if the Director
concludes in the good faith exercise of her discretion that the decision has a
substantial impact on a civil service law, rule, regulation, or policy directive; and
(3) the Director also is vested with discretion under the statute to determine that
non-precedential MSPB decisions p er se fail to satisfy the substantial impact
standard and therefore may not be the subject of a petition for reconsideration
under the authority of 5 U.S.C. A. § 7703(d).

   1 See FRTIB Letter; Letter for Randolph M oss, Assistant Attorney General, Office of Legal Counsel, from LorTaine
Lewis, General Counsel, Office o f Personnel M anagement (Jan. 15, 1999) ( “ OPM Letter” ); Letter for Randolph
Moss, Acting Assistant Attorney General, O ffice o f Legal Counsel, from John J. O ’Meara, General Counsel, Federal
Retirement Thrift Investment Board (Feb. 5, 1999) ( “ FRTIB Letter II” ) In addition to these written submissions,
representatives o f this Office met with representatives of the Federal Retirement Thrift Investment Board and OPM
on M arch 11, 1999, to consider oral presentations on the issues in question.


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                OPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions


                                                       I.


   Federal employees aggrieved by personnel decisions of their employing agencies
may seek relief by appealing to the MSPB. See 5 U.S.C.A. §7701 (1994). The
MSPB may either hear such appeals itself or refer them to an administrative law
judge or other presiding official it has designated to hear such cases. Id.
§ 7701(b)(1). In cases in which the interpretation of the federal civil service laws
is in issue, the OPM Director may intervene as of right, “ as early in the pro­
ceeding as practicable,” provided that she determines that an erroneous decision
would have a substantial impact on any civil service law, rule, or regulation under
OPM’s jurisdiction. Id. § 7701(d)(1).
   When the MSPB issues a ruling adverse to an employing agency, the agency
itself is not authorized to seek reconsideration or to appeal. Rather, under 5
U.S.C.A. § 7703(d), only OPM is authorized to petition on behalf of federal agen­
cies for judicial review of MSPB decisions. As the statute provides:

          The Director of the Office of Personnel Management may obtain
          review of any final order or decision of the Board by filing . . .
          a petition for judicial review in the United States Court of Appeals
          for the Federal Circuit if the D irector determines, in his discretion,
          that the Board erred in interpreting a civil service law, rule, or
          regulation affecting personnel management and that the B oard’s
          decision will have a substantial impact on u civil service law, rule,
          regulation, or policy directive. If the Director did not intervene in
          a matter before the Board, the D irector may not petition f o r review
          o f a B oard decision under this section unless the Director first peti­
          tions the Board fo r a reconsideration o f its decision, and such peti­
          tion is denied.

Id. (emphasis added).
  Thus, as a precondition to seeking judicial review, the OPM Director must first
determine in her discretion “ that the Board erred in interpreting a civil service
law, rule, or regulation affecting personnel management and that the Board’s deci­
sion will have a substantial impact on a civil service law, rule, regulation, or
policy directive.” Id. In MSPB cases in which OPM has not previously intervened,
moreover, OPM may petition for judicial review only if it has first filed an
unsuccessful petition for reconsideration with the MSPB. See Newman v. Corrado,
897 F.2d 1579, 1580 (Fed. Cir. 1990).2 Consequently, unless OPM files a petition

   2 In some instances, the MSPB has denied reconsideration o f issues raised by OPM on the grounds that the issues
raised did not satisfy the above-quoted standards o f 5 U S C .A § 7703(d). See H om er v. B um s, 783 F.2d 196,
198 (Fed. Cir. 1986) (discussed further, infra). As discussed in Point II.B, infra, however, the Federal C ircuit’s
                                                                                                       Continued


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for reconsideration in cases in which it has not intervened, an MSPB ruling
adverse to a government agency is final and unappealable.
   Under MSPB procedures, certain cases are disposed of by MSPB presiding offi­
cials without written explanation or review by the full Board. The MSPB refers
to such decisions as ‘ ‘non-precedential’ ’ decisions because they are not considered
to be binding on the MSPB in future cases. MSPB treats non-precedential
decisions as p e r se lacking a substantial impact on the civil service laws or regula­
tions within the meaning of 5 U.S.C.A. § 7703(d), and that treatment has been
upheld by the U.S. Court of Appeals for the Federal Circuit, which hears all
appeals from the MSPB. See Horner v. Burns, 783 F.2d at 201. In reliance on
the B um s opinion, moreover, OPM asserts that it will not and cannot petition
for reconsideration — and therefore cannot petition for judicial review — of any
MSPB non-precedential decision. As OPM has explained its position:

         [T]he M SPB’s practice of issuing non-precedential decisions that
         are insulated from OPM-initiated judicial review has been upheld
         by the United States Court o f Appeals for the Federal Circuit, the
         court that reviews MSPB decisions. H om er v. Bum s, 783 F.2d 196,
         200 (Fed. Cir. 1986). Based upon that precedent, OPM is unable
          to exercise its statutory authority to seek reconsideration and
         ju d icia l review o f the M SPB’s non-precedential O rder in this case.

Letter for Hon. Roger W. Mehle, Executive Director, Federal Retirement Thrift
Investment Board, from Janice R. Lachance, Director, Office of Personnel
Management (June 3, 1998) (emphasis added). OPM has reaffirmed this position
in a letter to this Office, stating:

         OPM is prohibited from seeking reconsideration o f a non-preceden-
         tial MSPB decision because, by virtue o f the Federal Circuit’s deci­
         sion in H om er, it may not lawfully make the substantial impact
         determination required by law to permit reconsideration and judicial
         review.

OPM Letter at 7.
  The Federal Retirement Thrift Investment Board (“ FRTIB” ), in contrast, con­
tends that OPM retains discretionary authority to petition the MSPB for
reconsideration of its decisions whether they are precedential or not. See FRTIB
Letter at 2-3. Among other things, the FRTIB contends that some non-precedential
decisions issued by the MSPB do have a substantial impact on the civil service
laws and that the B um s opinion, which the FRTIB believes is applicable only

opinion m Newm an v Lynch, 897 F.2d 1144, 1146 (Fed. Cir 1990), sharply circumscribes the M SPB’s authority
to “ pass judgm ent” on O PM ’s discretionary decisions to seek reconsideration of MSPB decisions.


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            OPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions


to petitions for judicial review (as opposed to administrative reconsideration), does
not prohibit the OPM Director from exercising her discretion to petition for
reconsideration of such decisions. See id. at 2-3; FRTIB Letter II at 3. Addition­
ally, the FRTIB disagrees with OPM’s view that the sole purpose of petitions
for reconsideration of MSPB decisions is to satisfy a prerequisite to judicial
review. In the FRTIB’s view, petitions for reconsideration serve the additional
important purpose of affording the MSPB an opportunity to correct errors without
the necessity of judicial review. See FRTIB Letter at 2-3.

                                             n.
                                             A.

   Apart from § 7703(d)’s provision that the submission and denial of a petition
for reconsideration of an MSPB decision is a prerequisite to judicial review in
cases where OPM did not intervene before the MSPB, the statute provides no
express standards governing when OPM may submit petitions for reconsideration
or under what circumstances they may be granted. See 5 U.S.C.A. §§7701-7703.
Indeed, § 7703(d)’s judicial review provisions contain the statute’s only reference
to, or provision for, the reconsideration procedure. To resolve the questions pre­
sented here, we must first determine whether the statute nonetheless is fairly read
to incorporate a substantial impact standard as a prerequisite for seeking
reconsideration as well as judicial review. We believe that il is.
   Initially, a requirement that OPM must make a substantial impact determination
as a prerequisite to petitioning for reconsideration of MSPB decisions is logically
consistent with the overall statutory scheme. Such a determination is a prerequisite
not only to OPM’s seeking intervention or petitioning for MSPB review o f an
initial decision, see 5 U.S.C. § 7701(d)(1)(B) and (e)(2), but also to OPM’s peti­
tioning for judicial review of final MSPB decisions. In this regard, we note that
an OPM petition for reconsideration in a case where it has not previously inter­
vened is essentially a belated form of seeking both intervention and administrative
review. Because the statute requires a substantial impact determination as a pre­
requisite to each of those procedural steps, it would be anomalous if that require­
ment could be bypassed only when OPM seeks to enter the case through a petition
for reconsideration. Consequently, we agree with OPM that a substantial impact
determination is required as a precondition to its petitioning for reconsideration
under § 7703(d).
   To be sure, the text of 5 U.S.C.A. § 7703(d) does not specify that OPM may
file a petition for reconsideration of an MSPB decision only if that decision, in
keeping with the standards for seeking judicial review, “ will have a substantial
impact on a civil service law, rule, regulation, or policy directive.” In contrast,
as noted above, the statutory provisions governing both OPM ’s right to intervene

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in proceedings before the MSPB and its right to petition the full MSPB for review
of an initial decision explicitly require an OPM determination that the case in
question meets the substantial impact test. See id. § 7701(d)(1)(B) and (e)(2). It
might therefore be argued that the absence of a “ substantial impact” determina­
tion requirement in §7703(d)’s provision for petitions for reconsideration reflects
a conscious congressional choice to omit such a requirement, given that Congress
knew how to, and did, make explicit provision for such a requirement in the case
of other procedural steps before the MSPB.
   Viewing the statutory scheme as a whole, however, we do not believe that this
factor should be considered dispositive in this context. Cf. 2A Norman J. Singer,
Sutherland on Statutory Construction §47.25 (5th ed. 1992) (the interpretive
maxim “ expressio unius est exclusio alterius” should not be applied if its applica­
tion would result in a contradiction or would not serve the purpose for which
a statute was enacted). In providing in § 7703(d) that a petition for reconsideration
would be a prerequisite to OPM’s obtaining judicial review of MSPB decisions
in cases in which it had failed to seek intervention, Congress did not purport
to establish the particular procedural requirements that would govern the filing
and consideration of petitions for reconsideration. Rather, Congress merely speci­
fied that OPM lacks authority to seek judicial review in a non-intervention case
unless it seeks reconsideration and that request is denied. In contrast, Congress
did undertake to establish specific procedural requirements in its statutory provi­
sions for intervention and petitions for administrative review by the full MSPB.
See 5 U.S.C. § 7701(d)(1) and (e). Congress’s greater specificity in addressing
these actions, however, does not imply that Congress intended different procedures
to apply when OPM seeks reconsideration, and the structure of the Act supports
the view that the same substantial impact requirements should apply.
   The conclusion that a substantial impact determination is required for petitions
for reconsideration is also consistent with the Senate Report accompanying the
Civil Service Reform Act of 1978:

          A Committee amendment to this subsection limits the occasions
       on which the OPM could petition the Board for review to only
       those instances where the OPM director first determines that the
       decision is erroneous and that, if allowed to stand, the decision
       would have a substantial impact on the administration of the civil
       service laws within OPM’s jurisdiction. The OPM should limit the
       cases in which it seeks the review by the Board to those that are
       exceptionally important.

S. Rep. No. 95-969, at 55 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2777.
The respective functions of OPM petitions for review and petitions for reconsider­
ation are so similar that it seems unlikely that Congress intended for them to

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                  OPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions


be governed by differing procedural standards in this respect. Further, because
§ 7703(d) refers to OPM petitions for reconsideration by MSPB solely in the con­
text of establishing the preconditions to seeking judicial review, logic and consist­
ency suggest that the threshold standards for pursuing reconsideration should
reflect the minimum standards for pursuing an appeal.3
  This interpretation of the statute also accords with the MSPB regulations gov­
erning OPM ’s submission of petitions for reconsideration. Those regulations
provide:

              (a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office
           of Personnel Management may file a petition for reconsideration
           of a Board final order if he or she determ ines :

                        (1) That the Board erred in interpreting a civil service
                      law, rule, or regulation affecting personnel management, and

                         (2) That the B oard’s decision will have a substantial
                      impact on a civil service law, rule, regulation, or policy
                      directive.

5 C.F.R. 1201.119 (1997) (emphasis added).4 MSPB’s rule requiring a substantial
impact determination by OPM represents a reasoned interpretation o f the statute
to which OPM properly adheres, even if it goes beyond matters o f procedure
and touches on the exercise of OPM’s discretion. Moreover, although the statute
(as discussed below) places the decision to seek reconsideration within O PM ’s
discretion, the MSPB has a critical role in interpreting the statute, and OPM
plainly may choose to follow the MSPB’s reasoned interpretations even of OPM ’s
discretionary powers.
  Accordingly, we conclude that the OPM Director must determine that an MSPB
decision satisfies the substantial impact test before she may properly file a petition
for reconsideration of such decision. We now consider how the OPM Director’s

   3 As the MSPB explained its interpretation in one opinion1
      Such a petitition [for reconsiderationj is a prerequisite for judicial review, and the statute does not establish
      a different standard for . . reconsideraUon. Like a petition for judicial review, a petiuon by OPM for
      reconsideration must allege       that it will have a substantial impact on a civil service law, rule, regulation
      or policy directive.
Hammond v. Department o f Navy, 5 0 M S .P .R . 174, 178 (1991)
   4 In the absence of specific statutory provisions governing petitions for reconsideration of MSPB decisions, the
agency charged with administration of the statute is generally authorized to fill in the interstices o f the statutory
scheme through administrative rulemaking See, e .g , Public Service Co. v. US. Nuclear Regulatory Comm’n, 582
F 2 d 77, 82 (1st C ir 1978) ( “ In a regulatory scheme where substantial discreUon is lodged with the administrative
agency charged with its effectuation, it is to be expected that the agency will fill in the interstices left vacant by
Congress ” ); Precious Metals A sso cs, Inc. v». CFTC, 620 F 2d 900, 911 (1st Cir. 1980) (agency rulemaking pro­
ceedings “ are designed to fill in the interstices o f a statute” ) In particular, judicial deference to agency rules “ is
especially applicable” when the agency is “ structuring its own rules o f procedure and methods o f inquiry ” Kelley
v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995).


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discretion in making that substantial impact determination is affected by the non-
precedential status of the decision.

                                                     B.

   In Newman v. Lynch, 897 F.2d at 1145-47, the Federal Circuit endorsed a broad
interpretation of OPM ’s authority to petition for, and to obtain, meaningful
reconsideration of MSPB decisions under 5 U.S.C.A. § 7703(d). In that case, the
MSPB had upheld a discharged federal employee’s allegations of discrimination
on the basis of handicap. OPM filed a petition seeking reconsideration of the
MSPB’s decision, contending that the MSPB’s finding that the employee had car­
ried his burden of proposing a “ reasonable accommodation” for his disability
was inconsistent with prior MSPB decisions and erroneous as a matter of law.
897 F.2d at 1145. The MSPB, however, refused to consider OPM’s petition on
the merits, ruling that the decision in question “ did not concern a civil service
law’ ’ and that OPM therefore lacked authority to petition for reconsideration under
the requirements o f § 7703(d).
   The Federal Circuit reversed, holding that “ the MSPB has no authority to
review the Director’s exercise of discretion in seeking reconsideration of an MSPB
decision” and rejecting “ the Board’s effort to restrict OPM with respect to what
issues fall under OPM ’s authority granted in section 7703(d).” Id. at 1145-46.
As the court further explained: “ The portion of section 7703(d) granting OPM
the right to seek reconsideration by the Board would be emasculated if the Board
may refuse reconsideration without addressing the merits of the substantive issues
raised by OPM .” Id. at 1147. T he Newman opinion also emphasized the narrow
scope of the court’s prior holding in H om er v. Bum s, noting that the B um s court
“ meticulously limited the scope of its decision,” and stressing that “ [w]e did
not recognize the broad authority now asserted by the Board to pass judgment
on the propriety of the [OPM] Director’s exercise of discretion in seeking
reconsideration.” 897 F.2d at 1146.5
   Under the Lynch opinion, the MSPB lacks authority to circumscribe OPM’s
discretion in determining whether or not a particular MSPB decision may satisfy
the substantial impact standard. In light o f the broad discretionary authority
allotted to OPM under Newman's analysis, we believe that OPM may properly
determine that even a non-precedential MSPB decision may have a “ substantial
im pact’ ’ in particular circumstances.

  5 See also Newman v. Corrado, where th e court invoked the legislative history of § 7703(d) in explaining the
purpose and significance o f petitions for reconsideration filed by OPM
    The Senate Report [on 5 U.S.C § 7703(d)] certainly suggests that something more than the equivalent
    of a functus officio response was contemplated in Board proceedings. The petition fo r reconsideration
    by OPM, in the words o f the Senate Report, provides " a n opportunity to consider the concerns o f O PM ."
    See S. Rep. No. 95-985, supra at 2786.
897 F 2d at 1582 (emphasis added).


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              OPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions


  The MSPB itself has recognized OPM’s discretion in determining whether the
statutory prerequisites to intervening, appealing, or petitioning for reconsideration
are satisfied. In Uhlig v. Department o f Justice , 70 M.S.P.R. 443 (1996), for
example, the Board stated:

        We cannot . . . decline to consider the merits of the Director’s
        intervention brief on the grounds that we disagree with his discre­
        tionary determination that the Board erred in interpreting a civil
        service law, rule, regulation, or policy directive and that the Board’s
        decision will have a substantial impact on a civil service law, rule,
        regulation, or policy directive.

Id. at 445.
  It is difficult to reconcile the foregoing precedents with the view that the
MSPB’s interpretation of the substantial impact test takes away OPM ’s discretion
to find that a given non-precedential decision may in fact have a substantial impact
on a civil service law, rule, or policy directive, and therefore warrant filing a
petition for reconsideration. Such a view would preclude OPM from exercising
the discretion recognized in the foregoing opinions, as well as in the M SPB’s
own regulation, see 5 C.F.R. § 1201.119(a). That regulation authorizes the OPM
Director to file a petition for reconsideration when “ he or she” — not the
MSPB — determines that a decision will have the requisite substantial impact. Nei­
ther that regulation nor the Federal Circuit’s opinion in Bum s provides that the
Director may make that discretionary determination only if it comports with the
MSPB’s interpretation of the substantial impact test. Such an interpretation would
also be inconsistent with Lynch’s holding that the MSPB may not “ pass judgment
on the propriety of the Director’s exercise of discretion in seeking reconsider­
ation.” 897 F.2d at 1146. Just as the MSPB may not foreclose OPM ’s authority
to petition for reconsideration by “ determin[ing] which civil service laws fall
within the responsibility of OPM,” id. (citing H om er v. Schuck, 843 F.2d 1368,
1372 (Fed. Cir. 1986)), we do not believe it can do so by usurping OPM ’s
authority to make its own discretionary determinations regarding the substantial
impact standard.
   Although the MSPB has itself acknowledged the broad discretion allowed OPM
under the Lynch opinion, it has pointedly reserved the right to “ question” OPM ’s
authority in submitting petitions for reconsideration of non-precedential decisions:

        Noting its previous decisions which had rejected restrictive
        interpretations of OPM’s authority to seek reconsideration under
        section 7703(d), the [Lynch] court concluded that the Board may
        not refuse to consider the Director’s petition on the merits because
        it disagrees with the Director’s discretionary determinations which

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          the Director is required to make before filing the petition. There­
          fore, in accordance with the court’s decision, we hold that, with
          the exception o f petitions f o r reconsideration o f nonprecedential
          decisions, the Board may not question the authority of the Director
          o f OPM to seek reconsideration of a Board decision, but must con­
          sider the Director’s petition on the merits.

Hammond, 50 M.S.P.R. at 179-80 (1991) (emphasis added; citations and footnote
omitted).6
  The M SPB’s opinion in Hammond asserts its authority to refuse reconsideration
of non-precedential decisions “ on the merits.” It does not establish that OPM
lacks authority tosubm it such a petition as a predicate to seeking judicial review
before the Federal Circuit under § 7703(d). In this regard, we consider it signifi­
cant that the B um s opinion upheld the M SPB’s rule denying reconsideration of
non-precedential decisions on the carefully qualified grounds that it was “ based
upon sound policy considerations” and was an “ appropriate practice fo r the Board
to utilize in handling its heavy volume of cases.” 783 F.2d at 201 (emphasis
added). The court did not, however, hold that the MSPB was required to follow
that interpretation on the grounds that it was the only permissible interpretation
of the statutory substantial impact standard. Nor did the court consider or decide
whether, as an objective matter, a non-precedential decision could never have a
“ substantial impact on civil service law, rule, regulation, or policy directive” from
the distinct perspective of the O P M D irector (as opposed to the “ case manage­
m ent” perspective of the MSPB). Hammond, 50 M.S.P.R. at 178.
   Thus, we do not believe that B um s prohibits the OPM Director from petitioning
for reconsideration of a decision that she in good faith determines will, in fact,
have the requisite substantial impact. An MSPB presiding officer might decide
without explanation, for example, that a major, newly adopted agency personnel
management policy directive was unlawfully applied to a particular employee.
Although the policy directive would not be legally invalidated due to the non-
precedential nature of the decision, the decision might well deter agency managers
from adhering to the policy directive and thus seriously undermine its future
application and utility. In the event that the OPM Director were to determine
that the decision had a substantial impact on the policy directive under the cir­
cumstances, we do not believe she would be legally barred from submitting a
petititon for reconsideration in accordance with the requirements of 5 U.S.C.A.
§ 7703(d) and 5 C.F.R. § 1201.119. Ultimately, then, the decision whether a non-
precedential MSPB decision has a substantial impact on the civil service laws
or regulations so as to justify an OPM petition for reconsideration rests solely

   6 In support o f this reservation, the Board asserted that H o m er v Bum s had upheld the rule “ that reconsideration
of nonprecedential decisions is inappropriate “ 50 M S P.R. at 180 n 4. The B um s decision, however, did not establish
or uphold any rule precluding OPM from seeking reconsideration o f non-precedential decisions o f the MSPB. It
narrowly addressed the permissibility of the standards applied by MSPB in disposing of petitions for reconsideration


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              OPM Petitions fo r Reconsideration o f Non-Precedential MSPB Decisions


in the discretion of OPM. The Director is not legally precluded from petitioning
for reconsideration of a non-precedential decision that she believes has such an
impact; nor is she required to do so. Although we recognize that non-precedential
decisions are generally unlikely to have a substantial impact on civil service laws,
rules, regulations, and policies, we must also recognize that the OPM Director
might legitimately conclude that, in certain unique circumstances, the requirement
is satisfied.

                                               C.

  In H om er v. Burns, the court upheld the MSPB’s practice of denying petitions
for reconsideration of unreviewed initial decisions of MSPB presiding officials
on the grounds that such decisions are not “ precedents of the Board” and there­
fore, for purposes of 5 U.S.C. § 7703(d), “ would not have a significant impact
upon civil service laws, rules, regulations, and policies.” 783 F.2d at 199. As
the court explained:

           The Board’s treatment of unreviewed initial decisions of pre­
        siding officials as non-precedential is based upon sound policy
        considerations and is a reasonable and appropriate practice for the
        Board to utilize in handling its heavy volume of cases. . . .

           . . . . The Director has not given any convincing reason why
        this practice of the Board is not an appropriate and proper method
        for the Board to use in handling its large docket.

Id. at 201.
   As we have shown, § 7703(d) and 5 C.F.R. § 1201.119(a) vest the OPM Director
with broad discretion in determining whether to pursue an appeal from, or a peti­
tion for reconsideration of, an MSPB decision. In exercising that discretion, we
believe the Director is free to follow the MSPB’s interpretation of the substantial
impact test upheld in Bum s and adopt a p e r se rule that non-precedential MSPB
decisions do not satisfy that test and therefore cannot provide justification for
a petition for reconsideration. Indeed, insofar as the Director concludes that non­
precedential decisions, by their very nature, do not satisfy the substantial impact
standard, a practice of declining to seek reconsideration of non-precedential
decisions would appear to conform to the governing MSPB regulation, see 5
C.F.R. §1201.119. As discussed in Point II.B, however, we do not believe that
such a conclusion is legally compelled by statute or case law.


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                   Opinions o f the Office o f Legal Counsel in Volume 23


                                      Conclusion

  OPM may petition for reconsideration of an MSPB decision only if the OPM
Director determines that the decision will satisfy the substantial impact standard.
Although the Director may exercise her discretion to adopt a p er se rule that
non-precedential MSPB decisions never satisfy the substantial impact standard,
the H o m er v. B um s opinion does not dictate such a practice nor prevent the
Director from exercising her statutory discretion to determine on a case-by-case
basis whether that standard is satisfied on the particular facts of each non­
precedential decision.

                                                          RANDOLPH D. MOSS
                                                    Acting Assistant Attorney General
                                                         Office o f Legal Counsel




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