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Who can file a whistleblower appeal with the MSPB?

Attorneys in Texas and the rest of the country with experience in fighting for the rights of federal employee whistleblowers know that the record of successes under the law is something of a mixed bag.

A stronger focus under the Obama administration has resulted in some improvements for workers seeking protections offered by the law. But, as we have noted on other occasions, there are still some limits to what protections are available. Free speech isn't always a safe defense if national security is believed to be threatened. And there's no trial by jury authorized by the Whistleblower Protection Enhancement Act.

Other limitations on who even can file one of the two types of appeals available by law are spelled out on the website of the U.S. Merit Systems Protection Board.

For example, if a person is in what is designated to be a "covered position" under Title 5 of the United States Code, he or she may be able to seek MSPB intervention for alleged retaliatory actions. Those who fit the "covered" bill would include:

  • Employees hired into competitive service positions
  • Excepted service employees from executive branch agencies
  • Senior Executive Service career appointees
  • Workers with government-owned corporations, such as the Postal Service or Amtrak
  • Government Printing Office workers

That is only a partial list. Others who may be able to file an appeal with the MSPB are those who have filed claims with the Office of Special Counsel, but who have not received any corrective action as a result within a 120-day window.

What you can see is that it may be difficult in some cases to determine if a person is in a covered position. In addition to that, there may be some different laws that apply, raising questions about which one should be invoked. To be certain of your rights in the face of apparent adverse action for whistleblowing, consult an attorney.

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