WASHINGTON – The American Federation of Government Employees applauds yesterday’s decision by the Merit Systems Protection Board upholding the appeals rights of federal employees who hold sensitive positions that don’t require security clearances or access to classified information.
The MSPB decision affirms the rights of employees who occupy sensitive positions that do not require security clearances or access to classified information to appeal adverse actions taken against them by their employing agencies based on agency determinations that the employees are not eligible to occupy sensitive positions. The MSPB’s Dec. 22 decision involved the case of two Defense Department employees, Rhonda Conyers and Devon Northover, who were suspended and demoted, respectively, when DoD determined that they were not eligible to occupy sensitive positions. The employees appealed these adverse actions to the MSPB.
The Defense Department argued that the MSPB had no authority to hear employee appeals of these cases, citing a 1988 Supreme Court decision that limited the MSPB’s power to review the merits of an agency’s decision to deny or revoke a security clearance.
AFGE effectively argued before the MSPB in September that extending the narrow Supreme Court exclusion to the growing number of federal employees who occupy sensitive positions but don’t require security clearances would severely limit employees’ statutory appeal rights.
The board agreed, declaring in its decision that denying appeals rights to these federal employees would have “far-reaching” impacts. “Accepting the agency’s view could, without any Congressional mandate or imprimatur, preclude Board and judicial review of alleged unlawful discrimination, whistleblower retaliation, and a whole host of other constitutional and statutory violations for multitudes of federal employees subjected to otherwise appealable removals and other adverse actions,” the board wrote in its decision.
“The Defense Department tried to deny thousands of federal employees their lawful rights to contest wrongful terminations and other adverse actions, under the guise of a narrow exemption that applies only to employees who hold security clearances,” AFGE National President John Gage said. “The MSPB rightfully struck down the agency’s overreaching argument.”