  United States Court of Appeals for the Federal Circuit



                                         04-3459



                                  JEFFREY C. FOLIO,

                                                             Petitioner,

                                            v.

                      DEPARTMENT OF HOMELAND SECURITY,

                                                             Respondent.


      Jeffrey C. Folio, of Denver, Colorado, pro se.

       John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General, and David M. Cohen, Director. Of counsel
was Donald E. Kinner. Of counsel on the brief were Steven E. Abow and Risa B. Cherry,
Attorneys, Office of the General Counsel, United States Office of Personnel Management.
Of counsel was Justin Mason.

Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit


                                       04-3459


                                 JEFFREY C. FOLIO,

                                                Petitioner,

                                           v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                Respondent.


                              ______________________

                               DECIDED: April 5, 2005
                              ______________________


Before MAYER, LOURIE, and BRYSON, Circuit Judges.

LOURIE, Circuit Judge.

                                      DECISION

      Jeffrey C. Folio petitions for review of the decision of the Merit Systems

Protection Board affirming a decision of the Immigration and Naturalization Service

(“INS”), now a part of the Department of Homeland Security, that he was not suitable for

employment as an Immigration Inspector. Folio v. Dep’t of Homeland Security, No. DE-

0731-03-0260-I-2 (M.S.P.B. June 15, 2004) (“Decision”). Because the Board erred in

certain aspects of its decision, we vacate and remand.
                                     BACKGROUND

       In August 2001, Mr. Folio applied for a position as an Immigration Inspector for

the INS. Shortly thereafter, INS informed Folio that its background check revealed that

he had not disclosed several traffic violations between 1995 and 1998, including driving

without proof of insurance, and a 1996 bench warrant that had been issued for his

failure to appear for an arraignment in a Colorado state court. Decision, slip op. at 3-4.

INS invited Folio to respond to those allegations. Despite Folio’s explanations, INS

determined that he was not suitable for employment as an Immigration Inspector, and in

March 2003, it withdrew its tentative letter of employment, rated his application as

ineligible, and barred him from competing for entry-level immigration officer positions for

one year. Id., slip op. at 4-5.

       Folio appealed to the Board, arguing that the traffic offenses and the failure to

appear at the state court should not be considered criminal or dishonest conduct in

INS’s employment decision. Additionally, Folio claimed that his prior conduct should not

reasonably be expected to interfere with his service as an Immigration Inspector.

       In reviewing Folio’s appeal, the Administrative Judge (“AJ”) to whom the case

was assigned looked to 5 C.F.R. § 731.202(b). That regulation enumerates specific

factors, including criminal or dishonest conduct, to be considered in an agency’s

suitability determination. The AJ considered the alleged traffic violations and analyzed

whether they were characterized as criminal or civil offenses under Colorado law. She

found that regarding three of the citations, Folio had pled guilty only to civil infractions,

as Colorado had decriminalized certain minor traffic infractions. However, she decided

that Colorado law characterized “driving without proof of insurance” and “failure to




04-3459                                   2
appear in court” as criminal offenses, and thus that those charges were appropriately

considered in INS’s suitability decision.

       The AJ stopped short of reviewing the connection between Folio’s alleged

misconduct and his suitability to be an Immigration Inspector because she interpreted

the Office of Personnel Management’s (“OPM’s”) recently-revised regulation, 5 C.F.R.

§ 731.501, as precluding the Board from reconsidering INS’s negative suitability

determination.   Specifically, she stated that “[t]he revised regulations do away with

decades of Board law . . . on the review of the OPM and agency’s procedures and the

application of proper nexus between any sustained misconduct and the efficiency of the

service.” Decision, slip op. at 7. She stated that “if the Board upholds and applies the

new regulation at 5 C.F.R. § 731.501 as limiting its review to whether the agency has

sustained the charge(s) only, the Board can never reach the issue of nexus.” Id., slip

op. at 8. The AJ nevertheless concluded that INS had shown sufficient evidence to

uphold its sole charge of unsuitability—e.g., criminal or dishonest conduct—and she

affirmed the agency’s decision. Id., slip op. at 13.

       Folio did not appeal to the full Board, and the AJ’s decision became the Board’s

final decision. See Wood v. Merit Sys. Prot. Bd., 938 F.2d 1280 (Fed. Cir. 1991); 5

C.F.R. § 1201.113. Folio timely appealed to this court. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       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 was: “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures




04-3459                                     3
required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

       On appeal, Folio argues that the AJ misinterpreted 5 C.F.R. § 731.501 as limiting

the Board’s jurisdiction and precluding its review of agency suitability determinations.

Folio also contends that the AJ’s interpretation of § 731.501 would prevent him from

receiving a full and meaningful “judicial review” unless the Board can review the

suitability decision itself, not simply the underlying factors supporting that decision. The

government—represented by the Department of Justice and OPM—responds that the

Board’s decision concerning the soundness of the charge was correct; however, it

agrees with Folio that the AJ misinterpreted § 731.501 and asserts that she erred by not

performing a full suitability analysis. Thus, both parties request remand to enable the

Board to conduct a review of INS’s suitability decision based on an interpretation of §

731.501 that gives the Board authority to review that full suitability determination.

       The issue before us is the scope of the Board’s review of an agency’s suitability

decision. The narrower issue as to whether the Board correctly upheld the sole charge

is not contested on appeal. As to the broader issue, we are persuaded that the Board’s

review of a suitability decision includes an evaluation of all of the criteria set forth in

§ 731.202, but not the ultimate action taken by the agency. We therefore agree with the

parties on this point, and we accordingly vacate the decision of the Board and remand

for it to consider all of the factors and considerations bearing on suitability set forth in §

731.202.




04-3459                                   4
       The jurisdiction of the Board is not plenary, but is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation. See Fernandez v. Dep’t

of Army, 234 F.3d 553, 555 (Fed. Cir. 2000). Section 731.501 of Title 5 of the Code of

Federal Regulations pertains to appeals of agency suitability determinations to the

Board and sets out that jurisdiction. It provides as follows:

       An individual who has been found unsuitable for employment may appeal
       the determination to the Merit Systems Protection Board. If the Board
       finds that one or more charges are supported by a preponderance of the
       evidence, it shall affirm the determination. If the Board sustains fewer
       than all the charges, the Board shall remand the case to OPM or the
       agency to determine whether the action taken is still appropriate based on
       the sustained charge(s). This determination of whether the action taken is
       appropriate shall be final without any further appeal to the Board.

5 C.F.R. § 731.501 (2004).

       As indicated, the AJ found that this regulation precludes the Board from

reviewing the “nexus” between any misconduct and the efficiency of the service. She

believed that the Board could not reach the ultimate issue of unsuitability, including the

nexus between the charge and the efficiency of the service. By nexus, it appears that

the AJ was referring to the relationship between the “specific factors” set forth in

§ 731.202(b) and the “additional considerations” set forth in § 731.202(c). We conclude

that both those factors and considerations are reviewable by the Board and that such

review is within the constraints of § 731.501.

       That section provides for an appeal of an unsuitability determination.       Under

§ 731.202, such a determination is to be based on the specific factors and additional

considerations listed in paragraphs (b) and (c) of that section. Section 731.202 reads

as follows:




04-3459                                  5
    (a)   General. In determining whether its action will protect the integrity or
          promote the efficiency of the service, OPM, or an agency to which OPM
          has delegated authority, shall make its determination on the basis of the
          specific factors in paragraph (b) of this section, with appropriate
          consideration given to the additional considerations outlined in paragraph
          (c) of this section.

    (b)   Specific factors. When making a determination under paragraph (a) of
          this section, the following may be considered a basis for finding an
          individual unsuitable:
                (1) Misconduct or negligence in employment;
                (2) Criminal or dishonest conduct;
                (3) Material, intentional false statement or deception or fraud in
                    examination or appointment;
                (4) Refusal to furnish testimony as required by § 5.4 of this title;
                (5) Alcohol abuse of a nature and duration which suggests that
                    the applicant or appointee would be prevented from
                    performing the duties of the position in question, or would
                    constitute a direct threat to the property or safety of others;
                (6) Illegal use of narcotics, drugs, or other controlled substances,
                    without evidence of substantial rehabilitation;
                (7) Knowing and willful engagement in acts or activities designed
                    to overthrow the U.S. Government by force;
                (8) Any statutory or regulatory bar which prevents the lawful
                    employment of the person involved in the position in question.

    (c)   Additional considerations. In making a determination under paragraphs
          (a) and (b) of this section, OPM and agencies shall consider the following
          additional considerations to the extent they deem them pertinent to the
          individual case:
                (1) The nature of the position for which the person is applying or
                    in which the person is employed;
                (2) The nature and seriousness of the conduct;
                (3) The circumstances surrounding the conduct;
                (4) The recency of the conduct;
                (5) The age of the person involved at the time of the conduct;
                (6) Contributing societal conditions; and
                (7) The absence or presence of rehabilitation or efforts toward
                    rehabilitation.

5 C.F.R. § 731.202 (2004).




04-3459                                6
       Section 731.501 further provides that an “action”* based on the determination

shall be final without any further appeal to the Board. That preclusion, however, does

not prevent the Board from considering the additional considerations that constitute the

“nexus” between the specific factors of paragraph (b) and the additional considerations

of paragraph (c). Section 731.202(a) expressly states that those specific factors and

the additional considerations form the basis of the general determination whether the

action will protect the integrity or promote the efficiency of the service. They are all

reviewable by the Board.

       Section 731.501 directs that if “one or more charges” are supported by a

preponderance of the evidence, the Board shall affirm the agency’s determination of

unsuitability. That regulation also provides that if the Board sustains “fewer than all the

charges” of unsuitability, the Board shall remand the case for the agency to decide

whether the “action” taken is still appropriate. These provisions merely indicate that

support for any charge is sufficient to justify an affirmance of a determination of

unsuitability, but that, if one or more charges is not sustained, a remand is necessary for

review of the suitability of any action taken. They do not bear on the question whether

the Board may go beyond review of specific charges.

       OPM’s statements in response to public comments made in light of changes to

its rule on personnel suitability support our interpretation of the regulation that the




       *
              The term “action” is defined by the regulations as “one or more of the
following: (1) Cancellation of eligibility; (2) Denial of appointment; (3) Removal; (4)
Cancellation of reinstatement eligibility; [and] (5) Debarment.” 5 C.F.R. § 731.203(a)
(2004).


04-3459                                  7
Board may consider all aspects of a suitability determination, except the actions taken

pursuant to it. In that response, OPM stated that:

               The new regulation seeks to demarcate the differences between
       suitability actions and adverse actions so that no one will confuse them in
       the future. Specifically, the regulation is designed to clarify that the
       Board’s role in reviewing OPM or agency unsuitability decisions always
       has been a limited one. The Board may determine only whether a charge
       of unsuitability is sustained by a preponderance of the evidence in
       accordance with the substantive standard set forth in section 731.202.

65 Fed. Reg. 82239, 82243 (Dec. 28, 2000) (emphasis added). OPM’s reference to

§ 731.202 indicates that the Board has a broader scope of review in suitability

determinations than merely reviewing the facts underlying the charges. The regulation’s

reference to the Board’s “limited” role relates only to its preclusion from reviewing any

actions taken.

       Finally, it is important to note that the regulation at issue was promulgated by

OPM and that Congress granted OPM the authority to define the scope of the Board’s

authority.   The jurisdictional statute for the Board provides that “[a]n employee, or

applicant for employment, may submit an appeal to the Merit Systems Protection Board

from any action which is appealable to the Board under any law, rule or regulation.” 5

U.S.C. § 7701(a) (2000) (emphasis added). Section 731.501 is such a regulation.

       We typically afford deference to OPM’s interpretation of its own regulation,

unless plainly erroneous or inconsistent with the regulation. See Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945); James v. Office of Pers. Mgmt., 372 F.3d

1365, 1369 (Fed. Cir. 2004). Here, OPM, joining in the brief before this court, has

asserted that the Board’s jurisdiction to review OPM’s determination is broader than the

Board claims.    An agency seeking broader review by its reviewing entity is indeed




04-3459                                 8
entitled to special deference, especially when supported by a regulation.           OPM’s

interpretation   is   also   consistent    with   its   own   December   2000   commentary

accompanying the promulgation of the new regulations and is in no way erroneous or

inconsistent with the regulations. Even if OPM’s interpretation had been expressed only

in its brief in the instant case, it would nonetheless be entitled to some deference. See

Auer v. Robbins, 519 U.S. 452, 461-62 (1997). We give it deference here.

                                          CONCLUSION

       Accordingly, we defer to OPM’s interpretation of the regulation in question and

vacate the Board’s decision that its jurisdiction in unsuitability cases is limited to a

review of the factual underpinnings of the allegations on which the unsuitability charges

are based. We hold that § 731.501 provides the Board with jurisdiction to review all

aspects of an unsuitability determination, including whether the charged conduct

renders an individual unsuitable for the position in question. The Board is precluded

only from reviewing or modifying the ultimate action taken, which is left to OPM or the

appropriately delegated agency. Here, specifically, the AJ may consider on remand all

aspects under § 731.202 of Folio’s ability to perform as an Immigration Inspector in

order to decide whether he is in fact unsuitable for that job. We thus vacate the Board’s

decision and remand for further proceedings consistent with this opinion.

                                VACATED AND REMANDED




04-3459                                     9
