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MSPB loses right to hear cases involving feds designated 'sensitive'

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The U.S. Appeals Court for the Federal Circuit ruled 7-3 that the Merit Systems Protection Board can't hear cases involving federal workers with a national security "non-critical sensitive" designation, in an Aug. 20 decision (.pdf).

The MSPB is the review board for federal workers who want to appeal a personnel decision.

The Office of Personnel Management brought the case to the appeals court to challenge whether MSPB could review personnel actions against two Defense Department workers because their positions were designated sensitive.

The majority opinion cited a 1988 Supreme Court ruling that limited MSPB's ability to hear cases involving national security concerns. However that case involved a government worker who had access to classified information. The two workers in the Aug. 20 decision did not have that access.

But the ruling said it didn't matter whether the employees had direct access to classified materials.

"It is naive to suppose that employees without direct access to already classified information cannot affect national security," Judge Evan Wallach wrote in the majority opinion.

Judge Timothy Dyk wrote the dissenting opinion and said the ruling would deny MSPB review for hundreds of thousands of federal employees.

The Project on Government Oversight said the case leaves federal workers with no right to challenge discrimination or retaliation for whistleblowing.

"Now, the agencies can be expected to abuse their new unbridled power to designate virtually any civil service position as sensitive," POGO said in an Aug. 21 statement.

For more:
- download the Aug. 20 ruling (.pdf)
- go to the Aug. 21 POGO statement

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