The Whistleblower Protection Enhancement Act has only been law for a few months, but a case involving the Office of Personnel Management may compromise much of its protection for potentially thousands of federal government workers in jobs that are nominally related to national security.
Two employees of Department of Defense suffered an adverse job action, when they were “deemed ineligible to access classified or sensitive information.” One worker was indefinitely suspended and the other was demoted. They filed cases with the Merit Systems Protection Board (MSPB). Last fall, an appeals court found their jobs, classified as “noncritical sensitive,” meant they could not file cases with the MSPB.
This takes away the protection of hearings by the MSPB for any employee covered by this classification, even if the job has no real access to national security information. According to Mother Jones, this ruling will prevent federal employees with whistleblower retaliation cases from hiring an employment law attorney and suing for wrongful termination.
This seem incorrect given that the appeals court judges relied on a U.S. Supreme Court case that decided that for cases involving national security the MSPB cannot review a termination.
That case was different, in that the worker terminated had needed a security clearance for the job. In this case, neither worker’s job needed a security clearance. A dissenting judge on the three-judge panel pointed out that the Supreme Court decision actually supported allowing access to the MSPB for these types of employees.
The case is set for a rehearing by a full panel of the Federal Circuit in May.
Source: Mother Jones “Obama Poised to Deliver Another Blow to Whistleblower Protections,” Dana Liebelson, April 24, 2013