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Washington, D.C. —The National Treasury Employees Union (NTEU) today welcomed a landmark decision by the Merit Systems Protection Board (MSPB) expanding the due process rights of tenured employees facing removal on “suitability” grounds.

In a Jan. 26 decision in Aguzie and Barnes v. Office of Personnel Management (OPM), the MSBP held that employee appeal rights guaranteed in adverse actions statutes apply when OPM finds that an employee is unsuitable for employment and directs the agency to remove the employee.

“This ruling allows employees, who are highly valued by their agency and who may have worked there for many years, to defend themselves if OPM directs their agency to remove them based on some alleged misstatement in their employment application or in a reinvestigation,” said NTEU President Colleen M. Kelley. “Until this decision, employees removed as a result of suitability actions had only limited appeal rights.”

In a friend of the court brief and in oral argument, NTEU argued that the MSPB has jurisdiction, under traditional adverse action provisions of federal law, to hear appeals from non-probationary federal employees who have been removed for an alleged absence of suitability.

Recognition of the application of the statutory appeal right—provided by Chapter 75 of the Civil Service Reform Act (CSRA)—establishes that the MSPB may, in appropriate circumstances, mitigate a removal penalty, NTEU argued.

“Our position on this issue is consistent with our long-time efforts to ensure that all rules impacting federal employees are fair,” President Kelley stated. NTEU spelled out its position in an amicus brief filed with the MSPB and in oral argument in October at the United States Court of Appeals for the Federal Circuit in Washington, D.C.

Until this ruling, federal employees removed as a result of suitability actions had only limited appeal rights. OPM regulations narrowly confined the scope of MSBP’s review.

OPM took the position, in the cases being considered by the MSPB, that when it directs an agency to remove a non-probationary employee on suitability grounds, such appeals should not be considered under the usual statutory adverse action procedures that apply to removals.

Instead, OPM contended, its rules govern consideration of such appeals, and do so in a way that limits the MSPB’s ability to mitigate removal penalties. MSPB rejected that argument. OPM may still appeal the decision.

In its decision, the MSPB made clear that OPM can still initiate suitability actions and direct agencies to remove employees after their first year of employment. Now, however, OPM will have to defend that action on the merits if challenged before the MSPB. OPM will have to show a connection between the conduct and the efficiency of the service, and also show that the penalty of removal is the appropriate action.

NTEU is the largest independent federal union, representing 150,000 employees in 31 agencies and departments.