DUE PROCESS IN EMPLOYMENT SEPARATION
National Guard technicians are tenured civil servants who, with certain exceptions, may be separated from their civilian jobs only for “cause.” 32 U.S.C. § 709(f)(2). The Supreme Court has held that this tenure gives technicians a constitutionally protected interest in their federal employment.
Before enactment of the Civil Service Reform Act of 1978, courts held without exception that Guard technicians are entitled to judicial review of their separations to determine the existence of just “cause.”
Recently, however, courts have held that the Civil Service Reform Act of 1978 and a 1990 amendment to that law imply congressional intent to take away the previously recognized right to judicial review of Guard technicians’ separations for cause.
The leading case is Booth v. United States, 990 F.2d 617 (Fed. Cir. 1993). The Booth decision and others that have followed it are erroneous. Nothing in the laws cited in Booth says that Congress intended to take away Guard technicians’ previously recognized right to judicial review. As a result of Booth and similar erroneous decisions, Guard technicians are (to our knowledge) the only tenured federal civil servants who have no right to any independent review (administrative or judicial) of their employers’ decisions to fire them for cause.
Legislative change is needed to restore Guard technicians’ previously recognized right to judicial review when they are separated for cause from their civilian jobs.
ACT is proposing that Title 32, Section 709(g) be amended by adding the following sentence at the end of the paragraph;
"Except for reduction in force, action described in subsection (f)(2) or (3) of this section, when accomplished by the adjutant general, is subject to judicial review under sections 702 through 706, and 5596 of title 5."
By amending the Title, this sentence will only reinforce the notion that Congress did not intend to remove the judiciary rights afforded dual status technicians.