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Washington, D.C.—The nation’s largest independent federal union today called on the Merit Systems Protection Board (MSPB) to reject an effort to limit the scope of its review in the removal of employees from “noncritical sensitive” positions when the employees do not have access to classified information. Limits on MSPB review in such instances would hamstring the Board’s ability to provide a neutral forum for review of employee removals.
The National Treasury Employees Union (NTEU) argued at an MSBP hearing that limiting the scope of the board’s review in such cases creates a very real potential for “damage to the basic procedural rights of federal employees.”
“Such a limitation would create a serious and completely unnecessary risk for federal employees,” said NTEU President Colleen M. Kelley.
At issue is the dismissal, since rescinded, of two Department of Defense (DoD) employees who were found by their agency to be ‘ineligible’ to hold a position classified as ‘sensitive’ even though they were far removed from any access to classified information. One was a GS 5 accounting technician; the other was a GS 7 commissary management specialist.
DoD is seeking to use the rationale in a 1988 Supreme Court case which limited the MSPB to merely a procedural review in cases involving employees with access to classified information. In a friend-of-the-court brief, NTEU argued the legal precedent has a narrow scope and should not be expanded to employees without access to classified information or no security clearances.
“There is no compelling interest present to justify stripping the Board of its broad jurisdiction over these adverse action appeals,” NTEU argued.
The application of the rationale in the 1988 matter to cases that do not involve access to classified information would mean that a great many federal employees—certainly into the thousands, and likely more—would no longer be entitled to full MSPB review should they be removed due to a finding by their agency that they are ‘ineligible’ to serve in their ‘sensitive’ position, the union argued. This is the first MSBP oral argument conducted in 27 years.
As the largest independent federal union, NTEU represents 150,000 employees in 31 agencies and departments.