First, "Chapter 75 ... is concerned with removals and other disciplinary action." See Lovshin v. Dep't of Navy , 767 F.2d 826, 830 (Fed. Cir. 1985) (en banc); see 5 U.S.C. § 7512 (listing "[a]ctions covered" by Chapter 75). It has "been in the civil service law essentially unchanged since 1912[.]"

As the Federal Circuit explained in Lovshin v. Department of Navy, different legal standards and procedures apply to removals under each statute. 767 F.2d 826 (Fed. Cir. 1985) ( en banc), cert. denied, 475 U.S. 1111 (1986).Id. at 834 (discussing legislative history and different standards of Chapters 43 and 75).

These options are not mutually exclusive. See Lovshin v. Dep't of the Navy , 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc) (noting that an agency might charge an employee under "Chapter 43 for ‘unacceptable performance’ in a critical element with an alternative, or additional charge, under Chapter 75 for ‘such cause as will promote the efficiency of the service’ " (first quoting 5 U.S.C. § 4303(a) ; and then quoting 5 U.S.C. § 7513(a) )). Although chapter 75 is typically invoked for misconduct-based actions, it also authorizes performance-based actions.

The essential rule is that federal employment should be operated under merit system principles and employees who cannot or will not improve their performance to meet required standards should be removed. 5 U.S.C. § 2301(b)(6). Merit system principles must be adhered to by all agencies in performance based actions. Lovshin v. Dep't of the Navy, 767 F.2d 826, 840 (Fed. Cir. 1985) (en banc). An agency may satisfy § 4302's requirement for objective criteria by communication in "any manner calculated to apprise the employee of the requirements against which she is to be measured."

The Supreme Court and this court have referred to the latter as a "for cause" provision. See , e.g. , Dep't of Navy v. Egan , 484 U.S. 518, 525, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) ; Dyer v. Dep't of Air Force , 971 F.3d 1377, 1383–84 (Fed. Cir. 2020) ; Kaplan v. Conyers , 733 F.3d 1148, 1154 (Fed. Cir. 2013) (en banc); Cheney v. Dep't of Health & Human Services , 479 F.3d 1343, 1350 (Fed. Cir. 2007) ; Lovshin v. Dept. of Navy , 767 F.2d 826, 842–43 (Fed. Cir. 1985) (en banc). "Misconduct," we have long held, is "cause" even without "intent" on the employee's part, as long as it has a "nexus" to the efficiency of the service.

In large part, the action of the presiding official resulted from the Board's then-current effort to cast all performance-based removals in the mold of Chapter 43. See Gende v. Department of Justice, 23 M.S. P.R. 604 (1984). Indeed, the briefs in this court appear premised on an exclusivity of Chapter 43. Those briefs were filed before this court decided Lovshin v. Department of the Navy, 767 F.2d 826, 829 (Fed. Cir. 1985) (in banc) (Chapter 75 may be used to remove an employee for performance-based reasons, provided the agency meets all requirements of that chapter). To argue, as does FAA in this case, that the main distinction between the two chapters (evidentiary standard) favors Hanratty, and that therefore the Board's holding here should be affirmed, is to miss the point.

OPM's statement accords with our understanding that Section 4302(c)(6) requires agencies to justify a challenged post-PIP-based removal by establishing the propriety of the PIP in the first instance. Our holdings in Harris and Lovshin v. Department of Navy , 767 F.2d 826 (Fed. Cir. 1985) are not inconsistent with this reading of Section 4302. Lovshin delineated four requirements agencies must satisfy before removing an underperforming employee under Section 4303.

Although under 5 U.S.C. § 4304 OPM must review each agency's performance appraisal system, "such approval does not involve OPM review of the performance elements and standards established for each position." Lovshin v. Dep't of Navy, 767 F.2d 826, 833 n. 6 (Fed. Cir. 1985). In this case, the arbitrator determined that the Agency had shown OPM approval of its performance appraisal system, A66; the Agency was not required to show OPM approval of the Agency's specific PIP standards, Lovshin, 767 F.2d at 833 n. 6.

Under this standard of review, this court will not overturn an agency decision supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lovshin v. Dep't of Navy, 767 F.2d 826, 844 (Fed. Cir. 1985) (en banc). Ms. Considine argues on appeal that NCUA improperly removed her from her position. As the AJ observed, NCUA bore the burden of sustaining its decision to remove Ms. Considine for unacceptable performance pursuant to the provisions of Title 5, chapter 43 of the United States Code.

These basic merit system principles "must be adhered to by agencies in all performance-based actions." Lovshin v. Dep't of the Navy, 767 F.2d 826, 840 (Fed. Cir. 1985) ( en banc). The questions of whether and to what extent section 4703(c) authorizes waiver of the requirement that agencies establish reasonable performance standards is a difficult one, and we need not decide it here because we conclude that neither the statute nor the regulations bar absolute performance standards, even in the absence of a waiver.