Home Media Center News Releases

Washington, D.C. —The National Treasury Employees Union (NTEU) today argued that the Merit Systems Protection Board (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)—would establish that the MSPB may, in appropriate circumstances, mitigate a removal penalty, NTEU said.

“This is an important matter affecting the rights of all federal employees,” NTEU President Colleen M. Kelley said. “Our position on this issue is consistent with our long-time efforts to ensure that all rules impacting federal employees are fair,” she added. NTEU spelled out its position in an amicus brief filed with the MSPB and in today’s oral argument.

Contrary to NTEU, the Office of Personnel Management (OPM) takes 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 contends, its rules govern consideration of such appeals, and do so in a way that limits the MSPB’s ability to mitigate removal penalties. In its brief, NTEU demonstrates that OPM’s position “collides with the plain language of the relevant provisions of the (CSRA).”

On its own, the MSPB used two pending cases to raise the question of whether it has the right to consider such an appeal as an adverse action. The Board invited interested parties to file briefs on the question.

NTEU said the CSRA “expressly provides that a removal of a tenured employee is statutorily-defined as an action taken under Chapter 75,” adding that “Congress chose not to include an OPM-initiated suitability removal on its list of exceptions to such actions.”

The case which is the subject of the NTEU brief, Aguzie v. OPM, involves an employee of the U.S. Commission on Civil Rights. The MSPB oral argument was heard today at the United States Court of Appeals for the Federal Circuit in Washington, D.C.

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