The Merit Systems Protection Board on Jan. 26 ruled that federal employees who were fired on suitability grounds can appeal their removal to the MSPB.
In Aguzie and Barnes v. Office of Personnel Management, MSPB said that employees’ rights to appeal adverse actions still apply when OPM finds someone is unsuitable for employment and tells an agency to remove him. OPM had argued that those appeals should not be appealed under the usual adverse action procedures.
Federal unions applauded MSPB’s ruling.
“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 Colleen Kelley, president of the National Treasury Employees Union. “Until this decision, employees removed as a result of suitability actions had only limited appeal rights.”
Andres Grajales, assistant general counsel at the American Federation of Government Employees said the union was glad to see the decision.
“The MSPB rightly closed a loophole that allowed the federal government to circumvent Title 5, Chapter 75 due process rights when using suitability determinations to remove an employee for alleged misconduct,” Grajales said. “This decision ensures that employees will be able to exercise the full range of appeal rights guaranteed to them by statute, regardless of whether a proposed removal comes from their employing agency or from OPM.”