Appeal rights of feds in lower-level security jobs called into question

By Emily Long

September 22, 2010

Union leaders and the Defense Department are sparring over the rights of federal employees in lower-level security positions to appeal adverse personnel actions before the Merit Systems Protection Board.

MSPB on Tuesday heard oral arguments in the cases of Rhonda Conyers and Devon Northover, Defense employees who were suspended and demoted from their jobs when they no longer met the eligibility requirements for security clearances. Conyers, a GS-5 accounting technician, and Northover, a GS-7 commissary management specialist, needed access to classified information and thus, clearances, to fulfill their job responsibilities, Defense officials argued at the time.

The parties have since agreed Conyers and Northover in fact could have performed their work without access to classified information or clearances. But MSPB still is trying to resolve the question of whether it can get involved in cases where the adverse personnel action is related to issues with security clearances.

Defense has argued the board lacks jurisdiction based on a 1988 Supreme Court ruling. In Department of the Navy v. Egan, the high court determined MSPB could not review appeals challenging the denial, revocation or suspension of a security clearance.

But lawyers for Conyers and Northover said the 1988 precedent does not apply because the employees were in noncritical sensitive positions, which do not necessarily require clearances.

In an advisory opinion MSPB requested, the Office of Personnel Management wrote current regulations are unclear on whether the 1988 decision applies to the Conyers and Northover appeals. But others have cautioned against applying the legal precedent to workers in noncritical sensitive positions.

"[The Office of Federal Operations] urges the MSPB not to make this far-reaching extension of the holding in Egan as it will deny basic procedural rights to an additional broad class of federal employees and effectively foreclose them from asserting their rights under this nation's anti-discrimination laws," Carlton Hadden, director of the Equal Employment Opportunity Commission's Office of Federal Operations, wrote in an amicus brief filed with the board.

Union officials on Tuesday argued the application of the 1988 ruling would limit federal workers' access to full, unbiased review of adverse agency personnel actions.

Andres Grajales, assistant general counsel for the American Federation of Government Employees, said there aren't any regulations preventing MSPB from hearing these appeals. Expanding the Egan exception to cover the large number of employees who occupy noncritical sensitive positions would severely affect those workers' statutory appeal rights, he added.

"Such a limitation would create a serious and completely unnecessary risk for federal employees," National Treasury Employees Union President Colleen Kelley said.

Tuesday's proceedings marked the first oral arguments to come before the MSPB in 27 years. Board members said the proceedings were important because of the "broad potential impact on the federal civil service and merit systems."


By Emily Long

September 22, 2010

http://www.govexec.com/defense/2010/09/appeal-rights-of-feds-in-lower-level-security-jobs-called-into-question/32395/