WASHINGTON – The American Federation of Government Employees presented oral arguments before the Merit Systems Protection Board today in a case that could severely limit existing appeals rights of federal employees.
At issue is whether employees who occupy non-critical sensitive positions, which do not require security clearances nor allow access to classified information, can contest adverse actions taken against them by their employing agencies based on agency determinations that the employees are not eligible to occupy sensitive positions.
The Defense Department contends that MSPB has no authority to hear employee appeals of these cases, citing a 1988 Supreme Court decision that limited MSPB’s power to review the merits of an agency’s decision to deny or revoke a security clearance when access to classified information was at stake.
AFGE presented the lead argument on behalf of two Defense Department employees, Rhonda Conyers and Devon Northover, who were suspended and demoted, respectively, when DoD determined they were unable to access sensitive information. The employees appealed these adverse actions to MSPB, but the Defense Department contends MSPB does not have jurisdiction over the merits of the cases.
AFGE maintains that the 1988 Supreme Court decision, Department of the Navy v. Egan, does not apply to cases in which employees are not required to have security clearances. Expanding that narrow exception to cover the large number of employees who occupy non-critical sensitive positions would severely limit federal employees’ statutory appeal rights, AFGE Assistant General Counsel Andres Grajales argued before the MSPB.
“There is no statute or regulation that would deprive MSPB of jurisdiction over these cases,” Grajales told the three-member MSPB panel. “There is no classified information and no security clearances at issue here – that’s undisputed.”