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Federal Circuit limits appeals to MSPB for "sensitive" employees

Federal civilian Department of Defense (DoD) employees handling "sensitive" work have lost any right to appeal an adverse job action the Merit Systems Protection Board (MSPB), according to a court of appeals decision last week. The court ruled this applies even when the job does not require a security clearance or classified access.

The U.S. Court of Appeals for the Federal Circuit deferred to the expertise of the DoD, and not the MSPB, when dealing with employment issues related to sensitive jobs where employees may pose a potential risk to national security. 

The ruling is significant, in that extends a prior Supreme Court precedent that had applied to issues involving security clearances. By including employment issues for workers involved with sensitive jobs, the ruling also could affect many other workers who would have been able to appeal adverse job actions, such as firings, demotions or other disciplinary actions to the MSPB.

The Office of Special Counsel (OSC) also criticized the ruling, noting that it could have a negative effect on whistleblowers within the federal government. The OSC Director commented that it would threaten whistleblower protections and "chill" future whistleblowing activity.

For any federal employee with a sensitive position, whistleblowing has become an even riskier proposition, because if the employee suffers retaliation as a result of the whistleblowing, their only appeal may be to the same management that engaged in the retaliation.

The organization representing the two DoD employees have indicated they intend to appeal the Federal Circuit's ruling to the Supreme Court. 

Source: Federal Times, "Court curtails appeal rights for 'sensitive' jobs," August 20, 2013

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