James B. King, Director, Office of Personnel Management v. Harry R. McManus and Merit Systems Protection Board

70 F.3d 1289 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. James B. KING, Director, Office of Personnel Management, Petitioner, v. Harry R. McMANUS, Respondent, and Merit Systems Protection Board, Respondent. No. 442. United States Court of Appeals, Federal Circuit. Oct. 31, 1995. Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RICH, Circuit Judge. ON PETITION FOR REVIEW ORDER PAULINE NEWMAN, Circuit Judge. — 1 — The Director of the Office of Personnel Management (OPM) petitions for review of the Merit Systems Protection Board's order denying OPM's motion for reconsideration. McManus and the Board have not responded. — 2 — OPM seeks review of the Board's decision holding that an agency may not separately charge a federal employee with providing false statements in response to agency inquiries if the agency also charges that the employee committed the conduct that was the subject of the inquiry. We recently granted OPM's petitions for review in a set of consolidated cases involving the same issue. See King v. Erickson, appeal nos. 95-3745, -3746. — 3 — Pursuant to 5 U.S.C. Sec. 7703(d), OPM may seek review of a Board decision when OPM determines, in its discretion, that the Board erred in interpreting a civil service law, rule or regulation, and that the Board's decision will have a substantial impact on the administration of the civil service. This court must independently determine whether an exercise of our jurisdiction is warranted. Devine v. Sutermeister, 724 F.2d 1558, 1562 (Fed.Cir.1983). — 4 — We determine that review of the Board's final order is appropriate. In this case, the Board and OPM disagree about the interpretation of our decision in Grubka v. Department of the Treasury, 858 F.2d 1570 (Fed.Cir.1988) and an employee's due process rights. We are persuaded that the Board's order will have a substantial impact on the administration of the civil service. — 5 — Because the other set of consolidated cases in Erickson involve the same issue, we deem the best course is to treat this case as a companion case to Erickson cases. — 6 — Accordingly, IT IS ORDERED THAT: — 7 — (1) OPM's petition for review is granted. — 8 — (2) This case shall be treated as a companion case to King v. Erickson, appeal nos. 95-3745, -3746.