MSPB upholds employee appeal rights

Federal workers who are determined unfit for government employment and have been removed from their jobs can appeal to the Merit Systems Protection Board.

MSPB on Wednesday issued a decision in the cases of Hyginus Aguzie and Holley Barnes, government employees whom the Office of Personnel Management deemed unsuitable for their jobs after they provided false information on federal forms. OPM then ordered the employing agencies -- the U.S. Commission on Civil Rights and the Homeland Security Department's Citizenship and Immigration Services, respectively -- to fire the workers.

The board in October 2010 heard oral arguments to determine whether Aguzie and Barnes could appeal their removals.

The former employees asked MSPB to consider their appeals under Title 5 U.S. Code Chapter 75, which authorizes agencies to take adverse actions against employees, including removal; suspension for more than 14 days; reduction in grade or pay; and furlough for 30 days or less against workers, if doing so will improve agency services. Employees are defined as individuals in the competitive service who have completed their probationary periods. According to briefs submitted to MSPB, Aguzie and Barnes had completed their one-year probations.

OPM argued, however, that MSPB should allow appeals only under Title 5 Code of Federal Regulations Part 731, which is narrower in scope than Title 5, Chapter 75, and governs OPM's authority to decide whether workers are suitable for continued federal employment.

In amicus briefs filed in the case, general counsels of the Treasury and Veterans Affairs departments argued the board must apply Part 731 because Congress gave OPM the authority to make suitability determinations, which are different from adverse actions that individual agencies administer. If an agency removes an employee through an adverse action, then Chapter 75 regulations apply, but if the removal is based on a suitability determination, Part 731 is more appropriate, the lawyers for the government said.

Union representatives disagreed, saying OPM cannot modify the appeal rights granted to federal employees by Chapter 75 provisions because Congress did not grant that authority.

In its decision, MSPB found that an OPM-directed removal of a tenured employee based on a suitability determination is covered by Chapter 75, and the adverse actions are subject to appeal. The board also will review OPM's decision to cancel the employees' reinstatement eligibility and prohibit them from seeking a federal position for three years.

OPM still can make suitability determinations and direct agencies to fire workers, but it will have to demonstrate a connection between the employees' conduct and the efficiency of agency service and show that removal is the appropriate penalty, the board said.

"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 National Treasury Employees Union President Colleen M. Kelley. "Until this decision, employees removed as a result of suitability actions had only limited appeal rights."

MSPB in October added the similar cases of Jenee Hunt-O'Neal and James Scott, employees of the Internal Revenue Service and Defense Finance and Accounting Service, respectively, to Aguzie and Barnes' arguments. The board will issue separate decisions in those appeals, however.