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Sensitive designation cases: no appeal to MSPB

In legal proceedings, an important issue is the level of review. Because hearing officers, administrative law judges and courtroom judges all make mistakes, the forum or entity that may hear appeals is significant. In some cases, it if is determined that there is no appeal from a decision, that decision becomes absolute, no matter what errors or flaws it contains.

For federal employees who have suffered some form of an adverse job action, whether discipline, a demotion or removal, in most cases can appeal their agencies decision to the Merit Systems Protection Board (MSPB). 

Recently, the U.S. Supreme Court narrowed that right by refusing to hear an appeal from the Federal Circuit, the court that typically hears appeals from the MSPB. By refusing to hear the appeal, the Federal Circuit's ruling that that MSPB has no authority to hear appeals in cases involving sensitive ratings stands.

This case applies to all federal employees whose position involves any "sensitive" or "non-critical sensitive" ratings and allows the agency to remove employees in those positions based on their own internal processes.

For employees, the danger of abuse exists when an agency designates positions as sensitive, because this rating eliminates any oversight by the MSPB.

Once a position receives the "sensitive" rating, employees could be removed or demoted for essentially arbitrary and subjective rationales, and the employee would have no grounds for redress, other than arguing that the application of the sensitive rating to the position violated due process.

While much of the functioning of the MSPB is subject to question, it is difficult to view the stripping of any right of review from thousands of jobs as a positive for federal workers. 

Source: FedSmith.com, "Supreme Court Backs Federal Circuit Over MSPB on Position Sensitivity Cases," Bob Gilson, April 1, 2014

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