MSPB upholds appeal rights of feds in lower-level security positions

Federal employees in lower-level security positions have the right to appeal adverse personnel actions, according to the Merit Systems Protection Board.

MSPB on Dec. 22, 2010, determined that employees who occupy sensitive positions that do not require security clearances or access to classified information can appeal adverse actions taken against them by their agencies based on a determination that they are ineligible to hold sensitive jobs.

The board in September heard oral arguments in the cases of Rhonda Conyers and Devon Northover, Defense Department 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 later agreed that Conyers and Northover in fact could have performed their work without access to classified information or clearances. But MSPB had to determine whether it could get involved in cases where the adverse personnel action was related to issues with security clearances.

Defense argued the board lacked 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 did not apply because the employees were in noncritical sensitive positions, which do not necessarily require clearances.

In its decision, MSPB determined the appeals do not involve a "discretionary agency decision regarding a security clearance," which means the board can review the cases.

"Accepting the agency's view could, without any congressional mandate or imprimatur, preclude board and judicial review of alleged unlawful discrimination, whistleblower retaliation, and a whole host of other constitutional and statutory violations for multitudes of federal employees subjected to otherwise appealable removals and other adverse actions," MSPB wrote.

Union officials argued the application of the 1988 ruling would limit federal workers' access to full, unbiased review of adverse agency personnel actions, and they applauded the board's decision.

"The Defense Department tried to deny thousands of federal employees their lawful rights to contest wrongful terminations and other adverse actions under the guise of a narrow exemption that applies only to employees who hold security clearances," American Federation of Government Employees National President John Gage said. "The MSPB rightfully struck down the agency's overreaching argument."

National Treasury Employees Union President Colleen Kelley said the ruling gives agencies the opportunity to identify problems with their assessments of employee eligibility for sensitive positions.

"This is an important matter affecting thousands of federal employees, particularly as agencies move to designate more and more positions as 'sensitive' national security positions, despite their lack of a security clearance," Kelley said. "This ruling will ensure that an agency will not be able to abuse its authority, and employees will have a path to contest unfair eligibility determinations."