Merit Systems Protection Board weighs security powers against employee rights

The elegant courtroom just a half-block from the White House where the Merit Systems Protection Board members met Tuesday has a significantly more dignified feel than the small, mundane M Street NW digs where they generally ply their trade.

But this was a special occasion.

To mark the first MSPB oral arguments in 27 years, the board used Room 201 of the U.S. Court of Appeals for the Federal Circuit, on Madison Place NW, just across from Lafayette Square.

Although this was a snoozer as courtroom dramas go, the two cases - involving Defense Department employees who were disciplined for national security reasons - nonetheless have important and potentially far-reaching implications. If the board rules against the two employees, it would "severely limit existing appeals rights of federal employees," according to a statement by the American Federation of Government Employees.

In announcing the hearing, the board said it will use oral arguments in cases "that present issues of special significance because of their broad potential impact on the federal civil service and merit systems."

During this time of "unprecedented government transparency and openness," said MSPB Chairman Susan Tsui Grundmann, "it is incumbent upon the Board to . . . conduct oral argument in order to shed light on the issues, the debate, and the process. Doing so should result in the best decisions for federal employees and agencies, and the American people."

Holding the hearing in the court's graceful setting may not result in better decisions, but it was a nice change of scenery. The courtroom has dark cherry wood paneling, and there were padded pews for the near-capacity crowd drawn to the session. The three board members sat in high-backed red leather chairs. They did not wear robes, but they all dressed in black, perhaps to emphasize the seriousness of the occasion.

Grundmann and particularly Vice Chairman Anne M. Wagner peppered lawyers on both sides with probing questions that gave no hint of how they will decide. The other member, Mary M. Rose, took a page from the playbook of Supreme Court Justice Clarence Thomas and sat mute.

Another MSPB hearing is scheduled for the same courtroom next month.

Tuesday's hearing concerned attempts by the Defense Finance and Accounting Service and the Defense Commissary Agency to restrict on national security grounds the board's ability to consider actions against employees in certain circumstances, even when their duties do not require security clearances and they have no access to classified information.

"There is no statute or regulation that would deprive MSPB of jurisdiction over these cases," said Andres Grajales, assistant general counsel of the American Federation of Government Employees, who took the lead in presenting arguments for the workers. "There is no classified information and no security clearances at issue here. That's undisputed."

The board does not have authority to review the judgment of executive branch officials regarding which employees receive security clearances. The Pentagon argues that MSPB also does not have the authority to decide cases involving employees whose positions are classified as "non-critical sensitive." There are many thousands of them.