MSPB opens up to oral arguments

Debra Roth, partner, Shaw Bransford & Roth

wfedstaff | June 3, 2015 2:20 pm

By Suzanne Kubota
Senior Internet Editor

The government agency charged with protecting federal merit systems has just held its first set of oral hearings in 27 years.

The cases involve the Defense Department and security clearance. And the Merit Systems Protection Board says they could have a broad impact on the federal civil service and and merit systems.

Debra Roth, partner in the law firm Shaw, Bransford and Roth, told Federal News Radio the MSPB’s decision to hear oral arguments was both about the cases and the Board’s commitment to transparency “as it issues decisions that are going to have government-wide impact.”


The Board, said Roth, “decided ‘We should open it up. Let the public hear it.'”

In the Matters of…

The MSPB yesterday heard about two cases with the same issue. Both were about DoD employees, and both employees hold sensitive positions in the government, said Roth. “Many positions at DoD are classified as sensitive. That’s their category.”

However, that doesn’t mean the people in those positions have to hold a security clearance, “but you do need to go through a certain, sort of, suitability assessment and fill out the SF 85 or the SF 86.” The assessment is not for access to classified information. It’s to determine whether you’re eligible to hold a sensitive position.

The sensitive position, said Roth, “has a bearing on national security, but you’re not going to actually see classified information.” She estimated that tens of thousands of positions in government are classified “sensitive.”

The agency makes the decision about whether or not an employee is suitable based on information provided by the employee.

If the agency decides against you on a security clearance determination, you have a very limited review. It’s just internal by the agency. If they take (away) your clearance, you very likely will get fired. Now you have an appeal right to the MSPB when you get fired, but in a security clearance case, the MSPB is not looking, they’re not superimposing, their view or whether or not you should hold a security clearance.

Instead, said Roth, the MSPB is looking to see did government gave the employee all the process they were due while the agency made the determination. The MSPB does not get to look at “should this person hold a security clearance?” said Roth.

“That is a determination the MSPB does not get to make, by law.”

So if you’re determined to be ineligible by the internal agency personnel office to hold a sensitive position, “and then of course you get fired because of your ineligibility, when you appeal to MSPB, does MSPB get to superimpose their decision on eligibility or are they only looking at what process you got,” asked Roth. “And, of course, for tens of thousands of employees who, up until these two cases, were getting that broader review by MSPB, ‘I should be determined eligible to hold a sensitive position,’ it’s in jeopardy. And the only review they may get externally is just the process review.”

Those were the issues in the cases argued yesterday in front of the MSPB.

Asked how she thinks the board will rule, Roth declined to offer her opinion. “I’ll tell you my thoughts and then I’ll be wrong and that’ll be fun for me,” she deadpanned.

To hear the audio of the proceeding from the MSPB, click here.